war on the rocks

The Blame Game: Building Justice for Chemical Weapons Use

August 21, 2018

Few people in the United States remember the worst terrorist attack in Japanese history. On March 20, 1995, Aum Shinrikyo, a doomsday cult, released sarin in the Tokyo subway, killing 13 people and injuring thousands more. On July 6, 2018, seven members of the cult, including its leader Shoko Asahara, were executed in Tokyo after 23 years of delays and appeals, finally bringing justice to the victims and their families who suffered in that terrible attack. While better late than never, 23 years is too long to wait for accountability, which remains vital for providing closure for victims — as well as for demonstrating that chemical weapons cannot be used with impunity.

This reminder comes not a day too soon. Since 2012 there have been more than 200 reported uses of chemical weapons — against civilians, military targets, and political enemies, by several actors including Syria, the Islamic State group, North Korea, and Russia. The most recent incident occurred on July 4, 2018, in the United Kingdom when a Novichok-type nerve agent poisoned a second set of individuals in the Salisbury area, killing one; this followed a first attack in the same area in March.

Accountability for these recent attacks has been episodic, limited or nonexistent. Traditional international attribution and accountability pathways through the United Nations and the Organization for the Prohibition of Chemical Weapons (OPCW) have been stymied by political dynamics. The Russian veto of the continuation of the OPCW-U.N. Joint Investigative Mechanism in November 2017 — designed to attribute chemical attacks in Syria to the responsible parties — is yet another example of how the Russians and others have obstructed international mechanisms intended to create accountability. The continued obstruction threatens the credibility of the nonproliferation regime and only encourages further use of chemical weapons.

A Glimmer of Light

But there have been some important breakthroughs that demonstrate how powerful multilateral diplomacy can still be in the pursuit of justice. On June 26 and 27, 106 states party to the Chemical Weapons Convention voted 82 to 24 to adopt a decision on addressing chemical weapons use. The special session of the Conference of the States Parties came at the behest of 11 member states of the Organization for the Prohibition of Chemical Weapons and was spearheaded by the United Kingdom, which only three months prior had experienced a chemical attack on its territory.

The decision gives the OPCW new powers to place blame for chemical weapons attacks — at least in the Syria case. Previously the OPCW had only been able to investigate the technical details of an attack. Attribution is necessary to assign blame for an attack and to determine whether sufficient proof exists to indict, prosecute, or otherwise punish those responsible. The UN also tasked the OPCW with sharing information with investigative mechanisms established by the United Nations, such as 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, established in 2016 under U.N. Security Council resolution 71/248.

The special session follows the establishment of the French-initiated International Partnership Against Impunity for the Use of Chemical Weapons — a multilateral effort composed of more than 38 countries and international organizations to stand up for the victims of these crimes and against those who use, or enable the use of, chemical weapons.

Beyond these multilateral efforts, on Aug. 8 the United States declared that it would impose new sanctions against Russia under the provision of the Chemical and Biological Weapons Control and Warfare Elimination Act of 1991 in response to the March 2018 poisoning of Sergei V. Skripal and his daughter Yulia in the United Kingdom.

Even as countries like Syria, Russia, Iran, and North Korea continue to test and degrade the norms against chemical weapons, the rest of the international community can and should do more to stand against the normalization of their use. The establishment of the International Partnership as well as the willingness of more than 80 states parties to the Chemical Weapons Convention to vote in favor of the decision on attribution suggests that finally more of the international community is willing to stand against Russian bullying and obstructionism regarding these weapons.

An Agenda for Accountability

The political tide may be beginning to shift, but practical and achievable steps are still required to gradually rebuild a system of restraint for chemical weapons. Over the last year, Center for Strategic and International Studies (CSIS) conducted a project to explore what more can be done to hold users of chemical weapons accountable and how to reinforce the norms and taboos against these weapons. More effective action is both possible and worth the effort. The report outlines several key areas the international community can focus on to develop a flexible, scalable, and implementable plan for attribution and accountability:

Create a zero-tolerance culture for chemical weapons use and ensure that repercussions are in place and enforced for all future instances of use. For too long the United States allowed its will to be tested — responding forcefully only to the most severe attacks and largely ignoring the rest. The United States should respond to each instance of chemical weapons use — through the use of legal, political, economic or potentially military measures that can be imposed unilaterally or multilaterally. A much larger menu of diverse and scalable response options can ensure that each episode of use is met with a meaningful and proportionate response. Certainty and consistency of response are as or more important than severity. The choice cannot and should not be between bombing or doing nothing.

Strengthen coalitions and internationalize responses as much as possible. Traditional multilateral processes and international institutions such as the United Nations Security Council are being obstructed, but that does not mean states cannot collaborate and coordinate responses. The expulsion of Russian diplomats in response to the Salisbury Novichok-type nerve agent attack by at least twenty-seven countries is a good example of coalition-based approaches that work to send a clear message. Internationalized responses provide comfort in numbers and distribute the cost of action. This type of unrelenting multilateral diplomacy takes a lot of effort but is worth it.

Relatedly, establish and reform institutional mechanisms to reduce vulnerability to political obstruction and adapt to the new and emerging chemical weapons threats and challenges. The International Partnership provides a great avenue for pursuing accountability through a coalition approach that is not constrained by Russia’s U.N. Security Council veto power. But creating new institutions for circumventing the United Nations and OPCW will not solve the problem in the long term. The international community also needs to better use other United Nations tools, outside of the Security Council, to strengthen and internationalize enforcement and accountability for chemical weapons use. The Secretary-General’s mechanism, the Conference on Disarmament, U.N. Security Council Resolution 1540 and its panel of experts, the U.N. First Committee, even the General Assembly can provide fora and authorities to address these concerns and compel Russia and other obstructionist parties to reconsider their approach. In addition, the OPCW should consider additional reforms, like providing mechanisms for censure in the event of serious instances of noncompliance by a state party and establishing probationary periods for countries that have used chemical weapons to accede to the Chemical Weapons Convention.

Fill technical gaps to ensure evidence is collected and preserved to OPCW standards. Attribution is the first step to accountability and it should be credible. Attribution processes in Syria and the United Kingdom assisted in undeniably determining the perpetrators. In any future instances of use, the international community should be ready to attribute and maintain the high standards of evidence collection. The United Kingdom, which hosts one of OPCW’s designated labs at Porton Down, had the technical resources to investigate the incidents at Salisbury and Amesbury — but not all countries have these means. Early identification of an instance of use, the quality of an investigation, and the preservation of the collected evidence are all very important to establish an effective accountability pathway. Therefore, it is crucial to pool technical resources when a chemical weapon is used because even countries with state-of-the-art resources, like the United Kingdom, have been faced with difficulty following use on their territory.

Expand judicial pathways to ensure domestic laws and legal processes are in place for prosecution. International pathways might not provide the most effective means for achieving justice. Domestic courts and legal proceedings, like the processes in Malaysia for the assassination of Kim Jong-nam (a half-brother of North Korean leader Kim Jong-un, who died after an alleged attack with a nerve agent), might provide the best avenue for accountability. But domestic systems should have the legal structures in place to seek prosecution. Countries could also explore universal jurisdiction over chemical weapons, similar to the antipiracy model, to ensure that use in instances of internal conflict are not outside judicial structures.

Engage, expand, and strengthen civil society to foster a community that calls for action in response to all instances of weapons of mass destruction use. Civil society has shown the ability on weapons of mass destruction issues to pressure governments, through the negotiation of the Treaty on the Prohibition of Nuclear Weapons, and other international efforts on issues such as landmines and cluster munitions. Nongovernmental organizations should also focus on chemical weapons use and encourage the more than 150 nations that signed the Treaty on the Prohibition of Nuclear Weapons to protect the norm against chemical weapons use and uphold the principle of a weapons ban.

Justice Delayed

While justice is in the process of taking place, victims are still dying of chemical weapons use. The ongoing use is a reminder that accountability matters. While swift justice is good, accurate and real justice is better late than never, even if it takes 23 years.

The recent multilateral breakthroughs demonstrate that the majority of the world cares about chemical weapons use. Progress is incremental, but recent efforts toward attribution and accountability show that it is possible to prevent a few states from obstructing the norms, rules and processes for investigation and accountability. Now is the moment to seize on these accomplishments and continue to strengthen these multilateral efforts to restore restraint. The opponents to upholding international rules and norms will come ready to the next Conference of States Parties session in November — but the United States and partner countries, particularly through the International Partnership, should sustain the momentum and be more prepared.

CORRECTION: An earlier version of this article said sarin gas was used in the Tokyo subway attack. The nerve agent used was in liquid form.

Rebecca Hersman is director of the Project on Nuclear Issues and senior adviser for the International Security Program at the Center for Strategic and International Studies (CSIS). Ms. Hersman joined CSIS in April 2015 from the Department of Defense, where she served as deputy assistant secretary of defense for countering weapons of mass destruction since 2009.

Sarah Minot is the associate director with the Project on Nuclear Issues at CSIS.

Image: OPCW