war on the rocks

Confrontation at the OPCW: How Will the International Community Handle Syria and Skripal?

June 18, 2018

Last month, Great Britain transmitted an unusual request to the Organization for the Prohibition of Chemical Weapons (OPCW), the body responsible for implementing the Chemical Weapons Convention. Britain asked to convene a Special Session of the Conference of the States Parties — only the fourth such meeting in the organization’s 21-year history. This meeting, which will take place on June 26-27, will be the first gathering of all members to address the problem of non-attribution of responsibility for use of chemical weapons — in other words, the inability to definitively determine who is behind several recent cases of chemical weapons use.

The stated agenda for the session is simply: “Upholding the global ban against chemical weapons use.” The purpose is to create a roadmap for attributing responsibility for chemicals weapons use by Syria. The meeting will also consider response measures for the attempted assassination of Sergei Skripal, a former Russian military intelligence officer living in the United Kingdom who was poisoned on March 4 with a “novichok” organophosphorus nerve agent. The Syria file and the Skripal incident have exacerbated tensions between Russia and Western states and resulted in unprecedented institutional stresses on the OPCW. Many governments have grown frustrated with the inability of the OPCW’s Executive Council and the UN Security Council to agree on the Syrian government’s responsibility for chemical weapons use, as well as with the failure to engage Russia constructively on the Skripal investigation.

These developments should be understood within a broader context of efforts to hold perpetrators of chemical weapons use legally accountable. The special session, and the institutional and political problems that led up to this point, have highlighted a number of challenges with multilateral chemical weapons control. In particular, the OPCW is bedeviled by serious disagreements between member states on basic facts, incomplete information, and an ethos of decision-making by consensus, as well an aversion to appearing overly coercive, that prevents the state parties from arriving at definitive conclusions. Despite these difficulties, however, the body remains the cornerstone of multilateral efforts to prevent the use and spread of chemical weapons, because only it has the standing capability to do so through credible verification and analysis.

International Efforts to Prevent and Punish Chemical Weapons Use

The OPCW is just one of a constellation of multilateral investigative bodies that focus on chemical weapons use. Other entities include the Independent International Commission of Inquiry on the Syrian Arab Republic, which operates under the auspices of the UN Human Rights Council; and the International, Impartial, and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes Under International Law Committed in the Syrian Arab Republic since March 2011, established in 2016 by the United Nations General Assembly.

In January, France launched the International Partnership against Impunity for the Use of Chemical Weapons. The same day, France imposed sanctions on individuals and companies for having links to Syrian chemical weapons activities. This initiative seeks to engage civil society and to “name and shame” specific persons and institutions on a dedicated website. Its creation reflects a determination to hold individuals and groups in the Syrian Government legally accountable for the use of such weapons.

The George Soros-funded Open Society Foundations includes a Syria Accountability Project. The project works on case-building and litigation, advocacy in national capitals, the European Union, and the United Nations, and capacity-building and grant-making for Syrian and non-Syrian groups working on documentation, advocacy, and criminal accountability. In addition, the Syria Accountability Project has recently begun focusing greater attention on actors that have supported the use of chemical weapons in Syria.

Last but not least, the OPCW-UN Joint Investigative Mechanism in Syria, which operated from 2015-2017, was the only multilateral arms control body that possessed both the substantive chemical weapons expertise and the mandate to attribute responsibility of use of chemical weapons in Syria. This body was dissolved when the Security Council could not agree on the terms of extending its mandate. Russia could not accept the mechanism’s findings that held Syria responsible for some chemical weapons use incidents, an illustration of the broader geopolitical cleavage between Russia and the West. It should also be noted that the Joint Investigate Mechanism’s technical capacity was partly based on the expertise provided by various OPCW Secretariat units. In addition, the cases investigated by the Joint Investigative Mechanism were a sub-set of cases developed by the OPCW. Simply put, the OPCW upholds most international chemical weapons arms control capabilities, including ad hoc arrangements involving the United Nations.

Theory and Practice of Chemical Weapons Convention Implementation

When a country accedes to the Chemical Weapons Convention, it must declare whether it possesses chemical weapons or has produced chemical weapons at any time since Jan. 1, 1946, including the locations and status of the production facilities. Countries must also declare, among other things, whether they have transferred chemical weapons to another state and whether they possess old and/or abandoned chemical weapons.

The Chemical Weapons Convention was drafted so as to afford parties an opportunity to demonstrate compliance to each other through verification reporting and inspections. Treaty negotiators were at pains to emphasize that the OPCW was not a coercive disarmament body and that, to the extent that corrective measures had to be taken to address fundamental non-compliance cases, this should be done mainly by the U.N. Security Council. The normal practice is to verify the consistency of a state party’s declaration partly through onsite inspections. The OPCW does not “look for non-compliance” as such, a practice that has created difficulties in the case of Syria. The inspected party is obligated to satisfy the inspection team’s mandate, but it is allowed to invoke “managed access” procedures. For example, OPCW inspectors sometimes use “blinding software” that simply provides a yes/no answer as to the presence or absence of a given chemical. An inspected party might also insist that samples not be removed out-of-country (Syria has, however, permitted out-of-country removal of samples).

OPCW members hold two broad views on how to handle the Syria file, a division that challenges the organization’s normal operating procedures. One is to treat the country much like any other member state (i.e., with equal rights and obligations). This approach reflects a longer-term perspective whereby compliance is viewed as a process. The second view is to label Syria as non-compliant, which would break with the practice of decision-making by consensus or deferral of decisions. Ascribing the motivations behind some governments’ positions on Syria and their broader geopolitical calculations is an inherently uncertain process. Since at least 2013 the approach by states parties has been to involve the Security Council in a dual-track process to facilitate bringing closure to the Syria file. To the extent that coercive elements are at work, the responsibility can be shifted somewhat onto the United Nations, thereby preserving better longer-term working relationships at OPCW.

Division, Confusion, and Other Internal Problems

When an investigation takes place, states parties collectively are responsible for drawing the overarching conclusions and taking decisions. Delineating these functions and processes is not always straightforward. Language employed in higher-level documentation may “hedge” and contentious points may be minimized or left unstated. This is a reflection of how international organizations operate more broadly, including by attempting to observe the principle of decision-making by consensus. Such stresses have brought into focus the procedures by which OPCW technical findings are communicated to the organization’s leadership, to states parties, and to the wider international community. It can also lead to frustration among the broader public seeking clear answers to compliance questions.

These dynamics have been on display in the Skripal investigation, and are likely to continue playing out during the special session and beyond. Britain wishes to hold Russia legally responsible within the Chemical Weapons Convention framework for the hostile use of a toxic chemical on its territory that put at risk British nationals and violated Britain’s sovereignty. Russia, for its part, has strongly denied responsibility for the Skripal attack and has pointed to the fact that — irrespective of the Soviet origin of novichok agents — other states have synthesized such chemicals within their defense establishments. The Skripal case is also complicated in that much of the United Kingdom’s broader investigation remains secret in order to protect intelligence sources and methods.

In March, the United Kingdom requested an OPCW technical assistance visit, effectively seeking to have its analysis of the incident validated within a multilateral disarmament and arms control framework. The technical assistance visit concluded that the chemical used in Skripal is not listed in the Chemical Weapons Convention’s Annex on Chemicals. It assessed the agent to be highly pure, but did not attribute responsibility of use as this was outside its mandate.

Meanwhile, OPCW Director-General Ahmet Üzümcü has tasked the organization’s Scientific Advisory Board to review the relevant literature and to clarify the definition of parent compounds and other chemicals that fall under the “novichok” nomenclature. While this will prove valuable for verification purposes, it will also provide a further basis for disagreements at OPCW meetings. Russia (with varying support of other states) can use any statement or document to support posing further reductionist questions — some of which are constructive — to challenge the validity of OPCW verification findings. In other words, any given report can be employed so as to achieve closure of an investigation or to promote open-ended discussion.

Without authoritative public information, much of the discussion on novichok agents will remain incomplete and include faulty information and assertions. There remains a sense among mainly Western countries, dating from the Cold War period, that such agents should not be discussed openly, including within multilateral arms control fora as this could draw attention to non-standard chemical warfare agents and therefore risk their being used for nefarious purposes.

There are also serious divisions among the states regarding the investigation. It is difficult for anyone outside government and the OPCW to ascertain the precise views (public and private) of many states parties vis-a-vis the Syria and Skripal files. Many states parties have refrained from taking a public position on the question of Russian obligations and responsibilities vis-a-vis the Skripal case. Western states are largely unified in their support for convening the Special Session. Iran and Venezuela have tended to side with Russia on the Syria and Skripal files. British Foreign Secretary Boris Johnson has called on all “right-thinking states” to support convening the meeting, while Russia opposes the meeting as “untimely and harmful.” On June 4 Iran stated that the meeting risks “wast[ing] the valuable time and resources of the Member States.” Brazil, China, India and Pakistan have tended to maintain an “agnostic” position, while emphasizing the importance of international technical verification efforts.

Special Session and Beyond

What results can we expect the special session to produce? One possibility is a move to amend the Chemical Weapons Convention’s Annex on Chemicals (which does not actually require a conference of the states parties). This has traditionally been a non-starter for several countries, including the United States. Üzümcü has exercised diplomatic tact by placing the possibility of amending the Annex on Chemicals onto future meeting agendas by referring to the April 2018 Scientific Advisory Board’s report that supports the Fourth Review Conference which will be held at the end of the year.

It should also be noted that any outcomes that depart from the principle of decisions by consensus on matters of substance (as opposed to administrative questions) will likely not be supported by enough states parties.

The special session may provide greater legal and political clarity or result in acrimony and institutional dysfunction. While attempting to predict the outcomes and longer-term implications would be imprudent, the contours of the discussion can be outlined partly on the basis of treaty regime practice and operational detail. Key questions include:

  • What will Syria’s membership status at OPCW look like if a political settlement to the current armed conflict is reached, particularly in the context of the Vienna Convention on the Law of Treaties (1969)?
  • Under what circumstances will the OPCW Declaration Assessment Team and Fact-Finding Mission work be ended?
  • Has the United Kingdom identified individuals for investigation or prosecution in the Skripal case?
  • Will Russia be cited by states parties for not fulfilling its Chemical Weapons Convention obligations? What parties will oppose this or abstain from taking a position?
  • Will the special session, in accordance with Chemical Weapons Convention provisions, refer the Skripal matter to the United Nations Security Council and/or the United Nations General Assembly for further action?
  • What OPCW technical findings or British investigation findings will be included in any referral to other international bodies or initiatives for follow-up investigation and prosecution?
  • Will such outcomes result in greater international legal and political clarity?
  • What will be the longer-term geopolitical consequences, including for international peace and security?

States parties will conduct intensive bilateral, regional, and multilateral consultations in the coming days on the special session agenda, draft decisions, and anticipated outcomes. Governments will engage in a time-honored practice of sending and receiving political signals and crosslinking broader policy issues with the Syria and Skripal cases in order to obtain preferred outcomes.

With respect to Syria and now Skripal, at least three broad scenarios for the Review Conference and regular Conference of the States Parties, both to be held at the end of this year, are possible. First, the meetings could be managed so as to separate these files from the rest of the agenda. Second, an attempt could be made to condemn Russia and/or Syria for non-compliance based on majority voting — a departure from normal international organization practice.. Under the Chemical Weapons Convention, decision-making by majority vote is largely confined to technical and administrative matters. While the treaty clearly requires voting on compliance matters by the Executive Council, the taking of a vote is usually avoided even for these issues as a general practice. Instead the focus is on developing texts and shared understandings over a longer period (such processes may take years). Finally, the files could be placed onto the “back burner” and managed as a longer-term clarification process.

Each approach has drawbacks and could result in a damaged institution and/or a weakening of the international norm against chemical warfare. To separate a chemical weapons use issue from the rest of the treaty regime’s activities would be to admit implicitly that the Chemical Weapons Convention cannot address its core function. Taking a majority vote would cause ill will such that it could result in some states interfering (actively or passively) in the normal functioning of the organization (this has not occurred thus far). Placing chemical weapons use files on the “back burner” would likewise leave the treaty regime open to the criticism that the OPCW is failing in its core function.

Looking Ahead: The Future of Multilateral Chemical Weapons Control

For now, the Executive Council remains divided on Syria and Skripal. It is unfortunate that many states parties will likely continue to refrain from taking a public position on these two distinct, yet linked, matters. The OPCW’s handling of the Syria file risks becoming a template for how it handles the Skripal file.

Such reticence partly reflects unwillingness by some governments to become entangled in Russian-U.S. disputes. But it also reflects variation in the analytical capacities within various countries’ respective intelligence and security services. Furthermore, most countries never had offensive chemical weapons programs, which, in turn, can help inform such assessments.

A related complicating factor is inadequate political will by some governments to arrive at their own analytical conclusions and to rely instead on the conclusions of others. For example, governments sometimes rely on the intelligence assessments of others within strategic trade control framework meetings such as the Australia Group which seeks to ensure that dual purpose equipment, materials, technology, and know-how are not misused for chemical and/or biological warfare purposes.

So long as the membership in general and the Executive Council in particular are unable (or unwilling) to reach conclusions about the Syria or Skripal case, the OPCW baseline of verification information and reporting will remain needlessly opaque to the public.

At the same time, there are excellent reasons for the OPCW to remain at the forefront of multilateral efforts to prevent the use of chemical weapons. While major powers may question the utility of multilateral arms control and disarmament frameworks, the OPCW nevertheless acts as a platform for all states to consult on verification and security matters. The Chemical Weapons Convention also has greater longer-term authority and legitimacy on verification issues than the assessment of any individual member state.

While such points may appear arcane, they remain salient in the context of chemical weapons arms control. In the future, the OPCW will increasingly focus on non-standard use of toxic chemicals as a method of warfare — that is, use of smaller amounts of chemicals by non-state actors. In particular, officials will further consider the types and quantities of agents used by non-state actors for both large-scale and targeted killing of individuals. This represents an operational-level adjustment in the treaty regime, which is currently state-based.

It remains to be seen whether the international norm against chemical warfare has in fact been weakened over the longer term. No government openly admits to the use of such weapons and condemnations of chemical weapons use by mainly non-Western states at OPCW tend to be directed towards unspecified bad actors.

While some may consider this assessment overly optimistic, the accumulation of technical verification findings should ultimately tip states parties towards a longer-term, broadly shared understanding about who is responsible for using toxic chemicals and their precursors for hostile purposes in Syria and, in principle, in Britain. While efforts by governments to cross-link political and technical issues in order to achieve politically preferred outcomes may carry the day in the short term, the longer-term focus should instead be on OPCW’s accumulation of credible information and analysis. As such, the organization continues to function as a vital platform for consultation and clarification for the long-term prevention of chemical warfare and upholding respect for agreed norms against arbitrary, illegal, and irresponsible behavior.

 

John Hart is Head of the Chemical and Biological Safety Project at the Stockholm International Peace Research Institute (SIPRI). He has worked as a Senior Consultant to the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO). He has also headed a European Commission Framework Programme 7 project to support public health in Central Asia and the South Caucasus under the EU’s Instrument for Stability (IFS). He holds a doctorate in military sciences from Finland’s National Defence University. The views expressed are personal and do not necessarily reflect those of SIPRI.

Image: OPCW