Practice Relating to Rule 74. Chemical Weapons
France’s LOAC Summary Note (1992) states that it is prohibited to use combat gases.
France’s LOAC Teaching Note (2000) includes chemical weapons in the list of weapons that “are totally prohibited by the law of armed conflict” because of their inhuman and indiscriminate character.
France’s LOAC Manual (2001) incorporates the content of Article 2 of the 1993 Chemical Weapons Convention and refers to the 1899 Hague Declaration concerning Asphyxiating Gases and the 1925 Geneva Gas Protocol.
The manual also includes chemical weapons in the list of weapons that “are totally prohibited by the law of armed conflict” because of their inhuman and indiscriminate character.
France’s Law on the Implementation of the Chemical Weapons Convention (1998) prohibits the use of chemical weapons and the development, production, stockpiling, possession, retention, acquisition, assignment, import, export and transfer of such weapons, and selling or trading in them.
France’s Code of Defence (2004) states:
Art. L. 2342-1. – For the application of the present chapter, the words “Paris Convention” refer to the Convention on the prohibition of the development, production, stockpiling, and use of chemical weapons and on their destruction …
Art. L. 2342-2. – … The terms and expressions … “chemical weapons” … “consumption” … “production” … “facility”, “chemical weapons production facility” … “material for the production of chemical weapons” … have the meaning which is given to them by the Paris Convention.
Art. L. 2342-3. – The use of chemical weapons, their development, production, stockpiling, possession, retention, acquisition, transfer, import, export, transit, trade, or brokerage are prohibited.
It is prohibited to undertake any preparations in order to use chemical weapons, as well as to assist, encourage or incite anybody who in whichever way undertakes any activity prohibited by the present chapter.
State authorities are nonetheless authorised, under the conditions established by the present decree, to hold, stockpile or retain chemical weapons for the purposes of their destruction.
The Code of Defence also states:
The development, production, acquisition, transfer, use, possession, retention, stockpiling, import, export, transfer, trade, or brokerage of chemical products set out in table 1 annexed to the Paris Convention are prohibited except for medical, pharmaceutical, research or protection purposes and in quantities limited to what can strictly be justified by these purposes.
France’s Penal Code (1992), as amended in 2010, states in its section on war crimes related to international armed conflict: “[The following offences] are punishable by life imprisonment: … [u]sing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices.”
In 1966, during a debate in the First Committee of the UN General Assembly, France stated that it was opposed to a general prohibition of chemical weapons. It wondered “how could States which had not signed or ratified a treaty be required to undertake to observe its provisions?”
In 1980, during a debate in the First Committee of the UN General Assembly, France stated with respect to Resolution 35/144, which it had sponsored:
In sponsoring [Resolution 35/144], the French delegation had only one concern: the strengthening of the [1925 Geneva Gas Protocol], particularly by use of an inquiry procedure. Information from various sources regarding the possible use of chemical weapons suggested that it was appropriate, indeed even necessary for the international community to take a stand in favour of an impartial investigation into compliance with the provisions of the 1925 Protocol.
The French Government, as a depositary of the Geneva Protocol, felt that special attention had to be given to everything related to respect for commitments entered into in that connexion.
It seems to us that the authority of the Geneva Protocol, the banning of chemical weapons and the means of successfully ensuring that ban are all such important matters that they require and justify a clear affirmation of the will of the international community.
In 1987, in reply to a question in Parliament, the French Minister of Foreign Affairs stated: “France attaches the greatest importance to the prohibition and elimination of chemical weapons.”
In 1988, the spokesperson for the French Ministry of Foreign Affairs condemned the use by Iraq of chemical gases against the Islamic Republic of Iran. The French authorities reiterated “their absolute condemnation of these practices, in blatant violation of the Geneva [Gas] Protocol of 1925.”
In 1989, in reply to a note verbale of the UN Secretary-General on the subject of chemical weapons, France declared that it did not possess chemical weapons.
At the 1989 Session of the Conference on Disarmament, France stated:
First of all, there is now a confirmed link between the present prohibition on use and the future [1993 Chemical Weapons Convention], a convention which will prohibit not only the use, but also the production, stockpiling and transfer of chemical weapons … Beyond the differences in legal commitments that exist between States, according to whether or not they are parties to the 1925 [Geneva Gas] Protocol, or whether they have tabled reservations to it, we now know – you now know – that there is a collective conviction on the part [of] 149 States, a conviction that makes it possible to move from the Protocol of 1925 to a global convention: the universal condemnation of the use of chemical weapons …
France possesses no chemical weapons and will not produce any once the [1993 Chemical Weapons Convention] enters into force.
In 1991, during a debate in the UN Security Council on the situation between Iraq and Kuwait, France stated that the ban on the Iraqi possession of chemical weapons was carried out from the perspective of regional and global disarmament.
At the 1992 Session of the Conference on Disarmament, France stated that there were no chemical weapons present on its territory, nor did it hold such weapons in the territory of another State. It also stated that it had no chemical weapons production facilities.
A French Government publication issued in 2005 and entitled “Fighting Proliferation, Promoting Arms Control and Disarmament: France’s Contribution” provides:
The use of chemicals as a significant weapon of war began at Ypres on 22 April 1915, the first large-scale attack using chlorine gas. In total, chemical weapons caused 90,000 deaths during the First World War. More recently, Iraq used chemical weapons against Iran in the 1980s, and against its Kurdish population in Halabja. The sarin gas attack in the Tokyo subway in 1995 also demonstrated that movements and groups which used terrorist methods were capable of using chemical weapons against the civilian population.
The techniques for producing toxic chemical agents are in some cases dual in nature: certain civilian industries (pesticides, petroleum, etc.) use methods that can be diverted to military applications. Their means of delivery are highly diversified, ranging from artillery shells to missile warheads to drones.
France has consistently sought to strengthen the fight against chemical weapons. It is the depositary of the 1925 Protocol on the Prohibition of the Use in War of Chemical and Bacteriological Weapons. In 1996, France removed the reserves it had appended to the Protocol at the time of ratifying on the possible use of such weapons in reprisal.
French policy is founded above all on the recognition of the particular nature of chemical weapons, and this is put into concrete effect by simultaneous action to combat proliferation and to promote disarmament. In parallel, France ensures that it has the means to defend itself against the consequences of a chemical attack by studying protective measures against such weapons and their effects, so as to ensure the health and safety of the civilian population and its armed forces.
The CWC: a unique instrument
The Chemical Weapons Convention (CWC), which was signed in Paris in 1993 and ratified on 2 March 1995, constitutes the cornerstone of French policy towards chemical non-proliferation and disarmament. It is a document unique in the field of disarmament: the only international convention providing a structure for both the total eradication of an entire category of weapons of mass destruction, chemical weapons, and a stringent system of verification (declarations, inspections, etc.) enabling action to be taken in pursuit of non-proliferation. The CWC is thus a comprehensive instrument whose goal is to combat the chemical threat in all its forms.
Pursuit of its univerzalisation is the main challenge faced at the present time by the CWC, to which 167 states have already adhered. This must be accompanied by domestic national measures for enforcement to enable its full implementation. The first Review Conference in 2003 adopted two action plans intended to speed up progress toward these twin objectives.
In parallel with these efforts, France has played an active part in putting in place controls on exports of dual-use (civilian and military) goods; this action has been channelled primarily through an informal body, the Australia Group.
France and the OPCW
In the field of chemical weapons, the Organisation for the Prohibition of Chemical Weapons (OPCW) oversees the implementation of the CWC, and is tasked with supervising compliance by the States Parties with their disarmament obligations. Only six states (Russia, United States, India, South Korea, Albania and, more recently, Libya) have acknowledged on signing the Convention that they were possessors of chemical weapons.
By the time the Convention came into force, France, which on 2 March 1995 became the first permanent member of the United Nations Security Council to ratify the CWC, had already fulfilled all its obligations with regard to the prohibition of chemical weapons (prohibition of the possession, manufacture and stockpiling of such weapons….). France has fully satisfied to date its obligations to declare to the OPCW all military and civilian sites subject to international verification, and is the fifth biggest contributor to the organisation’s budget.
France, which does not possess chemical weapons, has already fielded over thirty inspection missions conducted on its territory by the OPCW, such missions being a core activity of the organisation’s technical secretariat. Under the terms of the Chemical Weapons Convention, the OPCW must not only verify the destruction of chemical weapons held by possessor states, but must also assure itself that chemicals listed because of their dual nature are actually being used for authorised civilian purposes. The inspections conducted on a regular basis in various French industrial facilities have invariably demonstrated that France is complying meticulously with the commitments it has given under the CWC.
Processing old chemical weapons
Old chemical weapons (manufactured before 1925), a legacy of the First World War, continue to be unearthed on a regular basis in northern and north-eastern France, especially during agricultural work. These old weapons, which have to be destroyed, are collected and stored under the responsibility of the Ministry of the Interior. Their destruction is carried out under the aegis of the Ministry of Defence in a facility provided for this purpose. They are specifically declared to the OPCW.
Recognised and shared expertise in the field of chemical disarmament
The expertise France possesses in the chemical weapons field has in the past enabled it to contribute to the training of OPCW inspectors. CEFFIAC Centre français de formation pour l’interdiction des armes chimiques, the French training centre for the prohibition of chemical weapons, was set up for this purpose.
This expertise is also used to provide assistance for the destruction of chemical weapons. For example, France decided at the Kananaskis G8 Summit (June 2002), within the framework of the Global Partnership, to begin practical cooperation with Russia in order to conduct jointly the staged destruction of the stockpile of 40,000 tonnes of Russian chemical weapons declared to the OPCW.
In a white paper on “Defence and National Security” published in 2008, France’s Ministry of Defence stated:
The fight against the proliferation of weapons of mass destruction and their means of delivery will indeed continue to be a priority …
In order to be efficient, the fight against proliferation must be based on … the universalization and full implementation of the international conventions signed by the vast majority of States ( … [including the] Chemical Weapons Convention, or CWC).
The Proliferation Security Initiative or PSI … initially comprised 11 States. It now includes almost 90 signatories. It aims at improving operational cooperation among governmental actors in order to identify and prohibit the transfer of materials or equipment that may contribute to programmes on chemical … weapons and their means of delivery.
In December 2003, the European Union adopted … an action plan against the proliferation of CBRN weapons [chemical, biological, radiological and nuclear weapons], which covers all aspects of the fight against proliferation. In particular, the EU made the implementation of its commercial or cooperation agreements with third countries conditional on the latter’s respect for their international commitments regarding non-proliferation.
Chemical … weapons are [a] point of concern. All Western countries have renounced their programmes in this domain, and have continued only with the activities [needed] for protection against potential attacks.
The [CWC] was adopted in January 1993 and entered into force in 1997. It has so far been signed by 183 States …
… The objective of destruction of chemical warfare agents by 2012 provided for by the [CWC] will probably not be achieved. For these reasons, the effective implementation of this Convention must become a collective priority.
… France will continue to contribute to the initiative against proliferation … as well as to the application of the [CWC]. In general, [France] will develop its military and technical expertise that can eventually serve in the detection and repression of the trafficking in material and equipment for the conception and production of these weapons [chemical weapons].
Basic and applied research in these fields will be funded, as well as work conducted by French scientific laboratories. An effort regarding the training in clandestine programmes will be undertaken for the customs officers who are in charge of controlling war-related material as well as objects of both civilian and military use.
[Carrying out] missions for the fight against proliferation and the control over disarmament agreements will be among the objectives of both the armed forces and civil security, taking into account the predictable increase in control activities. Priority will be given to means of safely destroying illegal … chemical … installations, as well as to the means of defence and protection …
[France] will be particularly active in the fight against the proliferation
of … chemical weapons, as well as of missiles that could deliver them.
[emphasis in original]