Tears in Our Eyes: Third State Obligations in International Law

In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime.

Peacetime riot control, including the use of tear gas as a riot control agent, is not prohibited under any body of international law. Having said this, the effects of tear gas on the enjoyment of individual rights fall within the scope of international human rights law (IHRL) ((Cf. Maslen ed., Weapons under International Human Rights Law, CUP, 2014).

The use of tear gas can have rights-undermining consequences on the protection of the right to life (in particular, as I note above, if used in closed spaces or if tear gas is fired at closed range directly at protesters), the absolute prohibition of torture and ill treatment, freedom of assembly and the right to health. It also raises unique concerns for specially protected groups, such as children, the elderly, disabled, detainees and prisoners.  In addition, if used as part of a widespread or systematic policy against a civilian population, the use of tear gas can come under the scope of crimes against humanity.

Tear gas before human rights bodies and courts

Committees of the ICCPR, the CAT, the CRC and the ICESCR have all raised concerns about the effects of use of tear gas on the enjoyment of rights protected by their treaties (See for example, Concluding Observations of the CCPR to Ecuador, (CCPR/C/ECU/CO/5, 2009); Concluding Observations of the CRC to Panama (CRC/C/PAN/CO/3-4, 2011).  The United Nations Special Rapporteur on the Rights to Freedom of Peaceful Assembly and of Association has raised specific concerns about tear gas use, pointing to the fact that “[w]ith regard to the use of tear gas, the Special Rapporteur recalls that gas does not discriminate between demonstrators and non-demonstrators, healthy people and people with health conditions.” He also warns against “any modification of the chemical composition of the gas for the sole purpose of inflicting severe pain on protestors and, indirectly, bystanders.” (A/HRC/20/27, para. 35).

The use of tear gas, in particular by Turkey, has been subject to repetitive litigation before the European Court of Human Rights (ECtHR). In a series of cases under the Ataman Group, the ECtHR found that the use of tear gas against peaceful protesters, or persons deprived of their liberty constitutes inhuman and degrading treatment. The Committee on the Prevention of Torture of the Council of Europe issued guidelines for tear gas use and indicated that it must be prohibited in closed spaces within the Council of Europe member states.

Tear gas exports and third state responsibility

Assessing third state responsibility for tear gas use requires us to turn to the states that import tear gas. To assess the responsibility of tear gas importers requires answering two levels of questions. First, what triggers third state responsibility in international law? Second, what standard of proof is required to engage third state responsibility, such as that of South Korea, in cases of tear gas export?

The first question takes us to Article 16 of the Draft Articles on State Responsibility. This provides that:

‘A State which aids or assists another State in the commission of an internationally wrongful act by the latter is internationally responsible for doing so if:

(a) That State does so with knowledge of the circumstances of the internationally wrongful act; and

(b) The act would be internationally wrongful if committed by that State’

Let us address these conditions in reverse order.

The internationally wrongful act

The internationally wrongful act in the case of tear gas use is the use of tear gas by the exporting states in ways that undermine their IHRL obligations to respect and ensure human rights. IHRL bodies have all identified that punitive, excessive, or disproportionate use of tear gas is a violation of IHRL. In our example, South Korea is a state party to the ICCPR, the CAT as well as the ICESCR and the CRC, so is Turkey. In other words, punitive, excessive or disproportionate use of tear gas constitutes an international wrongful act both for Turkey and South Korea.

Knowledge of the circumstances of the wrongful act

This is where things get tricky.  What standard of proof satisfies the knowledge of an internationally wrongful act? The International Law Commission sets the bar high in its commentaries. It requires that:

• The relevant State organ or agency providing aid or assistance must be aware of the circumstances making the conduct of the assisted State internationally wrongful and;
• The aid or assistance must be given with a view to facilitating the commission of that act.

In other words, the fact that South Korea has knowledge of any non-IHRL compliant use of tear gas is not sufficient to trigger its responsibility under Article 16. South Korea must intentionally seek to contribute to the non-IHRL compliant use itself.  In our specific case, it would not be possible to prove that South Korea was intentionally seeking to undermine the prohibition of torture or freedom of assembly in Turkey.

Does IHRL support a less stringent test?

Article 16 in its current interpretive state leaves us with a lot of Korean tear gas to be used in non-IHRL compliant ways in Turkey. Is this where we have to leave this issue?

The UN recommendations and the emerging state practice may point to an alternative and a less stringent test.  In 2005, the UN Special Rapporteur on torture and other cruel, inhuman or degrading treatment or punishment pointed to the preventative duties of third states under IHRL. He asked exporting states to consider the risks associated with tear gas use. Specifically, he recommended exporting states must ‘prohibit the transfer of certain forms of equipment whose use in practice has substantially revealed a substantial risk of abuse and unwarranted injury’ (UN Doc E CN4/2005/62, page 11).  The EC Regulation 1236/2005 of June 2005 legalized this view with respect to EU export policy. Significantly, it instructed EU member states to take into account available international court judgments and UN recommendations when assessing such risk.

The major tear gas exporting states (the US, Brazil, South Korea, and the UK) too have in place varying schemes of risk assessment for the export of teargas directly by states themselves or by private companies domiciled in these states. In the US, there is a multi-level agency vetting of foreign military sales prior to sale and a possibility to temporarily halt sales. In the UK, there is ex-post review that investigates whether there is a pattern of abuse in the importing state. In Brazil, the government committed to a review with regard to its tear gas export to Bahrain. Perhaps more significantly, South Korea has a review policy. When explaining the decision to halt the sale of tear gas to Bahrain, a South Korean official said that “I want to provide assurance and confirmation that [officials from KNPA, DAPA, MoFA, the Ministry of Industry and Trade, and the Ministry of Defence] are almost fully in agreement over forbidding the export of tear gas for human rights violations.”

Back to our case

What then are we to make of Turkey’s latest shopping spree? Here, standard caveats must apply. The recommendation of the Special Rapporteur on Torture is just that: a recommendation. It has no independent custom generating qualities. EU Regulation is a clear divergence away from Article 16 of the ILC, but cannot in and of itself generate custom. The practice of tear gas exporting states, however, does require more attention. Their policies, albeit not uniform, do point to the fact that the state practice of the most relevant group does not support the ‘intent to facilitate’ test of the ILC.  Rather, domestic legal and governmental practice (key indicators of custom emergence) at the very least centre on the substantial risk of abuse or serious effect on rights enjoyment tests.

Whether this is sufficient to crystallize custom, and in what precision, however, does demand a more careful study. If intentionality is not a necessary condition, then what is? The future holds more tears in our eyes in Turkey and beyond. One thing we can see clearly through its haze, however, is the need to rethink the ILC Commentary paradigm for third state responsibility for specific types of international wrongful acts in the light of emerging custom that does not lend full support to it.