“Tear gas” is a loophole.
In practice, the term refers to a range of aerosolized solids or evaporated liquids that irritate the eyes and respiratory system; OC tear gas uses chili pepper oil and CS gas uses 2-chlorobenzalmalononitrile. But “irritate” might be something of a euphemism, however. As Sven-Eric Jordt put it, “Tear gases are nerve gases that specifically activate pain-sensing nerves,” producing an intense and burning pain on affected surfaces, especially mucous membranes. The name is also a euphemism, implying that “tears” are the primary physiological response to this weapon. In reality, tear gas can cause vomiting, choking, searing pain, and/or an overproduction of mucus that feels like drowning in one’s own fluids.
But what tear gas actually is–what its effects are on humans, and how deadly it can be–matters less than the loopholes that make its use possible. It can be manufactured and sold and used to disperse crowds because the semantics of the laws designed to regulate or ban it have been carefully finessed and manipulated; tear gas is always defined and legalized according not to what it is, but what it isn’t, in relation to other, ostensibly “more damaging” uses of force. Because it emerges out of that comparison–”less lethal,” “non-toxic,” or “more humane”–and because that comparison enables it to continue to exist, the history of tear gas is a story of loopholes and evasion.
Tear gas was first used in World War I, fifteen years after the Hague Conventions of 1899 laid the groundwork for all future legislation against the use “poison gas.” The 1899 treaty had been ratified by 27 countries, forbidding “the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases.” But when WWI provided the first serious test of this new legal regime, it would fail miserably: French troops first fired canisters of methylbenzyl bromide–a tear gas–at German trenches in August of 1914, and from that point on, both sides would steadily develop and deploy increasingly deadly chemical weapons. Germany initiated large-scale use of lethal gases with its 1915 introduction of chlorine gas, which can cause death by asphyxiation at high concentrations and prolonged exposure. Allied forces voiced their outrage, and immediately set about developing their own poison gases.
After the war, the backlash against the use of poison gas–perhaps the most terrifying part of the truly horrific experience of trench warfare–strengthened the international (near)consensus against the use of poison gas (partially codified in the Treaty of Versailles’ prohibition of German development, possession, or use of asphyxiating gases, and later in the Geneva Protocol). But having made immense profits during the war and foreseeing continued demand, manufacturers still wanted to develop and market “asphyxiating or deleterious gases,” so they began looking for loopholes.
For one thing, even if it wasn’t used, poison gas could still be manufactured and stockpiled. The Hague signatories agreed that the treaty would only be binding “in the case of a war between two or more of [the contracting Powers].” This meant that nations could use chemical weapons if their enemies were not nations, or not signatories to the treaty; Contracting Powers were also free to use poison gases in retaliation, if a belligerent violated the convention first. As a result, the US could continue developing and stockpiling poison gas, so as never to be caught without the ability to respond in kind.
Tear gas emerged, however, as a specific kind of “asphyxiating or deleterious gas” that could be used. First, governments and manufacturers quibbled with the definition of “gas”: the lachrymatory agent in tear gas–from the Latin lacrima, meaning “tear”–is not technically a gas; instead, the irritant (usually) consisted of tiny particles suspended within a gas or liquid. Next, tear gas advocates observed that while the law specified “projectiles the sole object of which is the diffusion,” there were methods of deploying tear gas that did not involve projectiles (as when the German military introduced chlorine gas in the Battle of Second Ypres by releasing it from cylindrical holding chambers and allowing the wind to carry the gas into French and Canadian trenches). The German military also argued that their gas-containing projectiles had more than one “object,” since they also “served” as shrapnel.
Most enduringly, however, the ban on “deleterious gases” only pertained to nations’ treatment of soldiers during wartime. And so–in an ironic and apparently paradoxical double-standard that has continued until day–it became legal to use a weapon on civilians that it would not be legal to use on soldiers.
The United States has particularly fought to preserve the legality of tear gas, both as “riot control” against civilians and also exempting itself from international legislation that would otherwise prohibit the use of tear gas in war. Because manufacturers were concerned that it would include tear gas, the Senate refused to ratify the 1925 Geneva Protocol prohibiting “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices,” and the U.S. would spend the next half-century maintaining that it didn’t prohibit tear gas in war (citing its designation as “nontoxic”). Over the course of that half-century, the U.S. would use tear gas both at home and abroad, against domestic protesters and also soldiers and civilians in Korea and Vietnam. After voting against a 1969 UN resolution that would strengthen the Geneva Protocol to explicitly include tear gas–on the procedural rationale that it was improper for the UN to interpret treaties via resolution–the U.S. finally ratified it in 1975, “renouncing as a matter of policy” first-use of RCM in war, while still claiming the protocol to be too ambiguous to be applied to tear gas in armed conflict.
Because it makes no intuitive sense that tear gas can be used on civilians but not soldiers–who it is permissible to kill in almost any other fashion–those opposed to tear-gassing civilians and those in favor of its wartime have a point when they protest this apparent double standard. Why, if tear gas shouldn’t be used on soldiers, should it be permissible for use on civilians? And if tear gas can be used on civilians, why can’t it be used in war?
The answer is simple: “tear gas” is this double standard.
There’s no necessary or intrinsic reason to distinguish tear gas from “more lethal” forms of gas; indeed, there are more toxic and deadly forms of tear gas, which are not allowable for that reason. Instead, the arguments for or against tear gas are always the products of backwards-reasoning, retroactive attempts to justify (or condemn) the situation in which tear gas was used. If tear gas feels wrong, the argument will be that it’s very much like other, deadlier chemical weapons; if it feels acceptable, the argument will be that it’s nothing like those other gases. The distinction, in other words, is produced by the rhetoric, which is produced, in turn, by the legal regimes the speaker is attempting to finesse or deploy.
In practice, however, one of the most compelling military arguments against using tear gas in war is that it’s too similar to other chemical weapons to be safely used in battle. In 1980, a legal advisor to the the U.S. Department of State observed that “although the United States does not regard the prohibition [on first use of chemical weapons] as applying to riot control agents, this view is not shared by the great majority of states”; deploying tear gas in war might therefore prompt the enemy to respond with a deadlier gas, either because they have mistaken tear gas for a poisonous gas or because they believe that it is.
In Tear Gas: From the Battlefields of WW1 to the Streets of Today, Anna Feigenbaum describes how the public perception of tear gas was manipulated after WWI to create a domestic market. Seeking to differentiate tear gas– a “chemical gas” developed by civilized Allied scientists–from the “poison gases” that were associated with brutal trench warfare and outlawed by the Hague Conventions, trade magazines “sold tear gas as a security solution for home invaders, burglars, bank robbers, prisoners, and most importantly, protesters.” Aimed at domestic law enforcement and civilians alike, advertisements lauded the effectiveness of tear gas as a “humane” alternative to other weapons. Dovetailing with new concerns over “mob” psychology–the idea that since large groups of people are often quite suggestible, a “mob mentality” could overpower individual opinions and sensibilities, making large groups unusually dangerous and unpredictable–tear gas was presented as a scientific, even modern way to maintain “order.”
In 1931, the U.S. representative to the League of Nations Preparatory Commission for the Disarmament Conference declared “the greatest use of lachrymatory gas is found, not in military service, but in police work either for controlling mobs, in which use it is certainly far more humane and probably more effective than the use of machine guns, sabres, or even truncheons.” In this way, tear gas is framed as a de-escalation of force: compared to past methods of “riot control”–in which guns, swords, and clubs had been used to bloody effect–tear gas would allow police to incapacitate a group of people without appearing to hurt them.
The idea of tear gas as a humane method of riot “control” is still widely accepted, but as Feigenbaum demonstrates it was a deliberate construction by those with a financial stake in the industry. Calling it “riot control” is hard to square with its use against groups of people that could hardly be described as “riotous” (take the recent protest in Phoenix), as well as by the absence of control it actually provides. If tear gas is meant to disperse an organized protest very quickly, it’s often regarded as an escalation, especially by those who may not be aware of the behavior the police will claim to have warranted tear gas. But, then, this is why it’s conceptualized as “riot control” in the first place: if tear gas is a riot control method, then anything it’s used against can be retroactively characterized as a riot. And if it’s a “less-lethal” means of crowd control, then its use can be justified, even when it kills.
Just as the narrative of tear gas as “less lethal” or “humane” is disconnected from the reality of what tear gas actually is, “riot control” methods are disconnected from the reality of how individuals behave in a crowd. But better understanding of crowd behavior has not changed the American approach to “crowd control”; police still work from assumptions about the nature of crowds birthed as far back as the French Revolution, presuming that all congregations of people are potentially violent. This perspective lends itself to a model of “public-order policing” that prioritizes controlling space and dispersing crowds. It’s also an approach to policing that conveniently requires tear gas.
By contrast, more recent work in crowd psychology indicates that the way police respond to a protest has a substantial impact on whether it escalates into violence, possibly greater than the behavior of individual protesters. When police respond to the actions of individuals by targeting the entire crowd–say, by releasing tear gas–previously non-violent protesters may perceive the police as adversarial, and respond in kind. Contemporary social psychologists argue that individuals in a crowd are attentive to the interests they share with others around them, making them likely to cooperate in pursuit of a perceived common good; a more effective policing approach would involve targeting and isolating specific troublemakers and engaging peaceful members of the crowd as allies rather than potential enemies.
Tear gas, of course, would have no place in this kind of policing. But even naming tear gas “less lethal” positions it within a specific spectrum of lethality, and implying–by that framework–that all responses to a “threat” must involve some amount of lethality (and that all lethal actions by police must have been in response to a threat). American police perspectives on crowd control foreclose the possibility of a non-riotous crowd, thereby ensuring tear gas’ position as a go-to tool for law enforcement.
Tear gas and its loopholes are mutually constitutive: ever since it became an object of legal regulation around the turn of the 20th century, the logic of tear gas has been a retroactive rush to justify its existence, manufacturing a need for the gas to justify a (financial) need to manufacture the gas.
Tear gas does, however, have one clear use: to maintain the power of the ruling class. The nature of tear gas as a loophole is a fake compromise between authoritarianism and an appearance of freedom, allowing the state to coerce subjects without appearing violent, regardless of whether or not the people on the receiving end experience it as violence. Tear gas comes with its own loophole, in other words, a contrived moral and rhetorical framework in which it will always be possible to justify its use by virtue of what it isn’t.
Jordana Rosenfeld
