As necessary as it appears to develop new and better nonlethal weapons for the military, some civilian groups continue to protest their legality, particularly the use of tear gas and pepper spray for crowd control.

Their use, says Edward Hammond, director of the California office of the Sunshine Project, an international organization protesting biotech weapons, violates the 1993 Chemical Weapons Convention.

The convention prohibits the military from using anti-personnel chemical weapons, even if the agents are legal for use by civilian law enforcement, Hammond said. “The use of tear gas in armed conflict is illegal, plain and simple.”

The Sunshine Project’s stance is that riot-control agents, though legal for use by law enforcement agencies throughout the United States, fall into the category of prohibited warfare agents because they are toxic chemicals.

“In addition to the false distinction between [riot control agents] and chemical weapons, there is no basis in the CWC for a distinction between offensive and defensive use,” said Mark Wheelis, a professor of microbiology at the University of California. “Both are illegal unless they specifically constitute law enforcement.”

The Army’s mere development of an 81 mm mortar round that would deliver a nonlethal chemical payload, for example, violates the convention, Wheelis said.

The military can use them because the riot control devices are approved for use by police, said Joe Rutigliano, a lawyer from the International and Operational Law Branch of the Directorate.

Weapon systems go through rigorous legal and testing scrutiny before deployment, Rutigliano said.

Those that “are clearly in violation or deemed inappropriate … under treaty obligations are not used,” he said.

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