3. NON-FULFILMENT OF POSITIVE COMMITMENTS BY THE STATE 

The Russian Federation, as a member-state of the Chemical Weapons Convention (hereinafter referred to as Convention), undertook “never and under no circumstances to carry out any activities prohibited to member-states of this Convention,… to develop, … to accumulate, … to stockpile … and  … to use chemical weapons” – toxic chemicals which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals, save “the purposes not prohibited under this convention on condition that the types and quantities are appropriate to such purposes (Clause II, Paragraph 9).”

However during the special operation in Dubrovka this provision of the Convention (Clause 2, paragraph 9) was disregarded, i.e. neither the type, nor the quantity of the chemical agent helped to attain the set purpose – to neutralize the terrorists so as to rescue the hostages.

The hostage takers had not been immobilized and rendered active resistance to the assaults by special forces (Resolution on refusal to initiate a criminal case dated 16.10.2003, page 69), therefore, the use of Fentanyl (chemical agent) derivatives and the quantity of the “special means” used in the theater did not correspond to the purposes they had been used for (protection of law and order), which constitutes a breach of the Convention (Clause II, Paragraph 9).

The use of the “special means” in the situation that excludes monitoring and control of individual doses received by individual hostages, as well as a failure to provide urgent medical aid to the injured increased the lethal effect of the agent, substantially increased the probability of lethal outcome, i.e. it was violation of the right to life which constitutes the priority right in international human rights conventions.

International laws permit the use of potentially fatal agents without control over the degree of injury only in extreme situations that are defined as “absolute necessity”. In this case, all commitments of a state related to the right to life and minimization of innocent casualties resulting from an operation are to be observed and fulfilled.

The investigation that Moscow City Prosecutor’s Office has been carrying out for three and a half years up to now failed to provide positive information on: the agent used (gas); possible antidote to that agent; the number of hostages released by the operation; the number of terrorists who had seized the theater; the names of officials who had made the decision about the assault.