Chemical terrorism: prevention, response and the role of legislation

In November 2010, a table-top exercise was held in Warsaw, Poland, to gauge the preparedness of states parties to the 1993 Chemical Weapons Convention to prevent and respond to chemical terrorism. The table-top exercise or ‘TTX’ was a good example of one way in which to test the procedures, evaluate the operational capabilities and clarify the responsibilities and legal authority of national, regional and local authorities. Running the TTX served to identify any legal and administrative gaps that could impair response, coordination and information-sharing efforts between relevant authorities, as well as any that might undermine investigations and prosecutions.

Participants for the TTX were drawn from relevant national agencies from states parties to the CWC, other states, and representatives from the chemical industry, scientific communities, NGOs, media, and international organizations. In total, representatives of 27 states, 16 international organisations and two NGOs—including VERTIC’s Senior Legal Officer, Scott Spence—took part in the exercise.

In the first section of this article, VERTIC—with consent from the Organisation for the Prohibition of Chemical Weapons (OPCW)—describes the scenario used in the TTX. The second section draws from VERTIC’s presentation in Warsaw and examines how countries can use effective legislative frameworks to prevent and respond to terrorist attacks using chemicals. Though the Chemical Weapons Convention is not an anti-terrorism instrument, implementation of its requirements through laws and regulations can create obstacles for terrorists attempting to use chemicals to cause harm and damage.

Scenario setting
A terrorist attack scenario was developed for the TTX so that participants could identify how countries could prevent and respond to such an incident. To do this, the scenario sketched out the main political and geographical characteristics of a fictional country and drew up a detailed chain of events leading to a terrorist attack on a chemical plant within the state. The scenario comprised events starting from the identification of a planned attack, tracking of suspects and interdiction of one group of terrorists, first response to the incident committed by a second group, crisis management, request for international assistance, and cooperation with a neighbouring country affected by the attack.

The broad set of circumstances and details provided in the scenario allowed exercise participants to explore important questions on the type and scope of security arrangements and crisis management measures that countries would need to deal with such situations.

In the scenario, the fictional state belongs to a regional cooperation union and is politically active on the international scene, being considered a close ally to one of the world superpowers. At the time in question, it is hosting a major international sporting event taking place in four locations around the country. A regional town and nearby chemical works are described in some depth by the scenario. The chemical works manufactures cyanogen chloride by chlorinating hydrogen cyanide with gaseous chlorine (the properties and significance of these chemicals are discussed in the second section of this article). Hydrogen cyanide is manufactured on the spot, without intermediate storage, from methane and ammonia in the presence of oxygen and a platinum catalyst (Andrussow process). The chemical works import their chlorine stock in rail tanks from a manufacturer located in another region, around 130 km away. Apart from holding chlorine for its own production, the company also stores the chemical for use in a regional drinking water facility.

The chemical works are described in the country’s national industrial safety plans as a high-risk plant (HRP). The facility therefore has an internal response operations plan for emergencies, and district fire fighters have rescue procedures prepared for the plant. The scenario supposes that it is early summer and there is a large increase of sports fans in the country due to the sporting event reaching its climax. The state’s national security agency obtains warnings from partner intelligence services about plans for a possible terrorist attack somewhere on its territories. The sources indicate that a terrorist organization based in a neighbouring country is facing being disbanded due to a lack of funds—the consequence of freezes on certain financial transfers instigated by international counter-terrorism measures. The organization is therefore planning to conduct a major attack in order to attract more funds and maintain its operationality. However, the presence of a peacekeeping mission in the country where the group is based makes staging attacks there difficult. The terrorist organization instead targets the neighbouring country since they object to its foreign policy, and it offers increased visibility for the attack since it is hosting an international sporting event.

A week before the attack, the ‘Cooperating State Party Intelligence Service’ spots individuals interested in facilities located on its territory. Simultaneously, the national security agency obtains information on unidentified individuals taking an interest in small companies using chlorine. At this point, the authorities believe they have confirmation of the suspected terrorists’ intention to stage an attack on a chemical storage or production plant. The time and location of the attack are, however, unknown, but a very likely target is a chlorine storage or production plant. The national security agency undertakes operations to track the suspected terrorists’ movements, in cooperation with intelligence services of neighbouring countries.

One group of terrorist suspects is caught and detained by border guards and anti-terrorists operatives at a railway border check point while en-route by train to the target country. Another group, however, manages to enter the country, gain access to the chemical works and succeed in detonating an explosion. The scenario describes meteorological conditions and outlines the state of activities in the nearby town as well as the local road traffic situation. It also provides information on the volumes of chemicals on-site at the facility at the time of the incident. Two tanks together hold 28t of chlorine (one larger vessel holds 20t while a smaller unit holds 8t). There are also two empty vessels. The plant is operating at its regular capacity of 0.7 tons per hour of cyanogen chloride and 0.28 tons per hour of hydrogen cyanide.

The scenario supposes that the terrorists break into the site and eliminate all the guards and control room personnel. However, they fail to correctly identify the storage tanks containing cyanogen chloride —which they want to target—and instead place an improvised explosive device on the largest storage tank which contains chlorine. After securing an escape route they detonate the explosives remotely. The chlorine tank breaks releasing all of its content into a dike. About 5t of chlorine evaporates in a very short time as a result of quick evaporation; the remaining 15t evaporates at a slower rate. The chlorine plume reaches the first settlement after 13 minutes and the town centre after 25 minutes, resulting in several deaths and injuries among the local population.

Legislation for preventing terrorist attacks involving chemical weapons
Results from running the table-top exercise highlighted the need for states to have various types of prevention and response measures for criminal or terrorist attacks using chemicals. It is also crucial that states have comprehensive legislation in place to enable and facilitate these prevention and response procedures for chemical attacks. Though the discussion below focuses on legislation solely to address chemical terrorism, it should be noted that, increasingly, many states are also considering comprehensive legislation to prevent and respond to attacks involving biological, radiological or nuclear weapons. Many states are also combining their actions to tackle chemical, biological, nuclear or radiological (CBRN) terrorism with strategies to prevent and respond to accidents during the production, storage or transport of CBRN materials—be they the result of human error or natural disaster. Indeed, the process of building state capacity to prevent and respond to CBRN attacks inevitably helps countries to reduce the risk of accidents involving CBRN materials, and to be better prepared if they do happen.

In the scenario described in the first part of this article, the country’s intelligence services had confirmed early on that a terrorist attack on a chlorine storage or production plant was likely. For dealing with such situations, governments will need to consider whether they have legislation in place which enables them to investigate suspected preparations for a terrorist attack involving CBRN materials, including laws to enable electronic and physical surveillance of suspected terrorists. Governments would also need to be enabled by law to gather intelligence and analyze it, which would require a level of technical expertise that differs from terrorism involving more conventional materials. Intelligence services in neighbouring countries in the scenario were able to share useful information about an imminent terrorist attack, most likely on a chlorine production or storage plant. This suggests that governments will need to consider whether they have legislation in place to allow co-operation with intelligence and law enforcement agencies in other countries, including their customs and port authorities.

Certain terrorist threat situations may require a rapid collaborative response between states that do not have a history of co-operation with one another. So it may not be sufficient for a country to have only bilateral agreements; they could also need authority for co-operation with law enforcement officials in other countries. International co-operation also needs to encompass financial surveillance. This technique could be particularly useful for detecting and monitoring criminal and terrorist groups planning CBRN attacks. These typically require significantly more money, so groups may resort to money laundering and other forms of illicit financing for their activities. Many governments have set up Financial Intelligence Units for this purpose and in many countries a number of financial entities must comply with regulations to prevent money laundering and terrorist financing.

Adequate legislation is also needed to restrict access to chemical production or storage facilities, particularly those sites holding any chemicals that are listed in one of the three schedules of chemicals annexed to the CWC, which are subject to monitoring by the OPCW. Background checks, access authorization procedures and personnel monitoring will be needed, along with measures for the physical protection of chemical facilities. Finally, though not relevant to the TTX scenario, governments should also consider whether they have measures in place to criminalize unauthorised activities involving Schedules 1, 2 and 3 chemicals, including international transfers by terrorists. These chemicals have historically been used as either precursors or as chemical agents for the production of chemical weapons.

Legislation for responding to terrorist attacks involving chemical weapons
Should a terrorist or criminal group succeed in carrying out an attack using chemicals, governments will need appropriate legislation in place to respond to the incident. In the TTX scenario above, the terrorist group had intended to blow up tanks containing cyanogen chloride (a Schedule 3 chemical subject to monitoring by the OPCW). Instead, they confused storage tanks and released chlorine, which is a particularly deadly chemical if released into the air in large quantities. Indeed, chlorine has been used as a chemical warfare agent but it is not a scheduled chemical under the CWC (because of its ubiquity) and is therefore also not subject to OPCW monitoring.

Governments would need to have several measures in place to respond to an attack of this kind. Their most important priority will of course be tending to casualties, which may require a legislative basis for co-operation among officials from law enforcement, public health and crisis and media management. First response will then be followed by investigation. In the case of incidents involving CBRN materials, investigative techniques, including collection of evidence and sampling, will necessarily be different to techniques in more conventional contexts, and most states will require regulations to facilitate these kinds of investigations, as well as training for the investigators. Governments will need to consider whether they have relevant terms defined in law to enable prosecution of any suspects identified through the investigation phase. These would include terms such as ‘chemical weapon’, ‘toxic chemical’ and ‘purposes not prohibited under the Chemical Weapons Convention’. The definitions could be incorporated into CWC implementing laws, penal codes, counter-terrorism or other similar laws. When taken together, these definitions would characterize the intentional use of chlorine to kill or harm humans or animals, as the use of a chemical weapon. It is largely irrelevant whether the terrorists in the scenario blew up a tank containing cyanogen chloride or chlorine—in either case their intention was to commit a terrorist act using chemicals in order to harm or kill humans. By definition, they used a chemical weapon. In addition to definitions for relevant terms, a state party’s legislation must include the CWC’s Article I prohibitions, which include a complete ban on any use of chemical weapons by state or non-state actors. Without specific criminal provisions and stiff penalties, it may be harder to secure a satisfactory court judgment. A government should also be able to exercise extraterritorial jurisdiction over any violations involving chemical weapons, since terrorists may flee the territory where the attack occurred, or there may have been preparatory events that took place elsewhere.

All parties to the CWC are required by Article VII to implement the convention through national laws and regulations. States that are not party to the convention are under no legal obligation to implement it but are required, like all UN members, to implement measures to prevent the proliferation of chemical weapons to non-state actors under UN Security Council Resolution 1540. Though the CWC is not an anti-terrorism instrument, an effective legislative framework which implements the non-proliferation obligations of the CWC will greatly facilitate the prevention and response to criminal or terrorist attacks involving chemicals. It will also greatly facilitate the monitoring of routine commercial or state activities involving scheduled chemicals, including their production, use and transfer, to ensure that they are being used legitimately and not for terrorist purposes.

Scott Spence,
Senior Legal Officer, VERTIC