The August 2013 sarin nerve agent attack on Ghouta, which killed hundreds of Syrian civilians, led to a Russian-U.S. agreement on eliminating the Syrian government’s chemical weapons and Syria’s accession to the 1993 Chemical Weapons Convention (CWC), which bans production, possession, and use of chemical weapons.
The Organisation for the Prohibition of Chemical Weapons (OPCW) and the UN Security Council established the multilateral machinery to monitor the implementation of these decisions. However, a number of states, mainly Western ones, continue to question the completeness of Syria’s chemical weapons declaration; and the use of chemical weapons—chlorine, sulfur mustard, and sarin—did not end.
Although the international community has remained united in its condemnation of such attacks, views about the extent of Syrian governmental responsibility fuel debates within international bodies and have become increasingly fraught and reminiscent of Cold War rhetoric. Reported chemical weapons use has continued into 2018, even after the military defeat of the Islamic State group and after the Syrian government had re-established at least nominal control over most of its territory.
It is against this backdrop that the fourth CWC review conference is scheduled to meet November 21-30. It is important to find ways to manage the Syrian chemical weapons issue so as to avoid lasting damage to the CWC regime and its institutions. Further, it is vital to protect the independence of the international mechanisms for investigating alleged CWC violations while holding accountable those responsible for chemical weapons use.
Allegations about chemical weapons use in Syria started in 2012. In March 2013, the UN secretary-general used his authority to investigate a case presented to him by Syria alleging chemical weapons use by opposition groups the prior month. France, the United Kingdom, and later the United States impressed on the secretary-general the view that allegations of such use by the Syrian government should also be investigated. This resulted in extended consultations among governments and UN officials on which cases the United Nations should investigate.
The deadlock was broken when the UN and the Syrian government agreed on the scope of the investigation in early August, but these terms changed again in the wake of the August 21, 2013, sarin attack on Ghouta, a rebel-held eastern suburb of Damascus. Western intelligence agencies concluded within days that the attack was conducted by Syrian government forces. The UN secretary-general’s mission investigated the incident on-site and confirmed that sarin had been used, but did not attribute responsibility.1
This incident, which drew the threat of U.S. military action against the Syrian government, triggered a series of unprecedented steps.
- The accession of Syria to the CWC in September 2013, which was synchronized with the agreement of the Russian-U.S. framework on the elimination of Syrian chemical weapons along with subsequent decisions by the OPCW and the UN Security Council to implement this framework.
- The work of the OPCW-UN Joint Mission in Syria to verify the destruction of Syria’s chemical weapons program, including the shipment of chemical warfare agents and precursor chemicals for out-of-country destruction (October 2013-September 2014).
- The establishment of the OPCW declaration assessment team to clarify and resolve inconsistencies and gaps in the Syrian declaration (spring 2014).
- The establishment of the OPCW fact-finding mission (FFM) to investigate the continued allegations of chemical weapons use in Syria (spring 2014).
- The decision by the Security Council to set up the OPCW-UN Joint Investigative Mechanism (JIM) to establish who was responsible for the confirmed chemical weapons use on the basis of work carried out by the fact-finding mission (2015-2017).
The JIM mandate expired in November 2017 as a consequence of deep divisions in the UN Security Council, in particular Russian criticism. The work of the other mechanisms continues, but in the absence of a handover of confirmed cases from the fact-finding mission to the JIM, the question of responsibility for these transgressions is now largely relegated to national assessments.
Nevertheless, efforts are underway at the Security Council to replace the JIM with a new investigative mechanism: a UN Independent Mechanism of Investigation. The Security Council considered a draft Russian proposal in January, while the United States has tabled a revised proposal, which was considered in early March. The Russian delegation did not attend the March meeting.2 Meanwhile, France has launched an International Partnership Against Impunity for the Use of Chemical Weapons.
Incoming OPCW Director-General Fernando Arias of Spain will assume his duties on July 25. This change at the helm of the secretariat, as well as the upcoming CWC review conference, presents challenges and opportunities for returning to common strategies for handling and perhaps resolving the Syria chemical weapons problem.
A careful management of these issues is vital to avoid further polarization in the OPCW, while burying the issue will harm CWC norms and its institutions.3
The situation in Syria involves several interconnected elements: the completion of the destruction of the declared aspects of the Syrian chemical weapons program; the completeness and accuracy of Syria’s declaration of its chemical weapons stockpile and production capabilities, including whether undeclared stockpiles remain in Syria; the continued use of chemical weapons against combatants and civilians; and the question of responsibility for such incidents.
A steering committee comprised of representatives of the OPCW, the UN Office for Project Services, and Syria manages the completion of the operations to eliminate the Syrian chemical weapons program. All declared materials and 25 of 27 declared production facilities have been destroyed under OPCW verification. Routine inspections of certain destroyed underground structures will continue in accordance with the CWC. In November 2017, due to an improved security situation, the OPCW was able to conduct an initial inspection of the two remaining above-ground production facilities, located outside Aleppo and Damascus.4
The declaration assessment team continues to interview Syrian chemical weapons program officials and conduct site visits to collect samples. It attempts to reconstruct the genesis of the program in order to fill gaps in the Syrian declarations. The current focus is on determining the full role of the Syrian Scientific Studies and Research Center in the chemical weapons program, assessing the results of analyses of samples collected at multiple locations in Syria, and clarifying the nature of “other chemical weapons-related activities” before Syria’s accession to the CWC in 2013.5
The work of the fact-finding mission also continues. In January, a team visited Damascus and transported biomedical and environmental samples back to the OPCW laboratory.6 Although the team’s mandate includes the investigation of whether chemical weapons have been used in Syria, it does not extend to establishing responsibility for their use.
UN Security Council Resolution 2235 established the JIM on August 7, 2015, with a mandate to identify those responsible for confirmed instances of suspected chemical weapons use. Attributions of responsibility are summarized in the third, fourth, and seventh JIM reports.7 In 2016 the JIM concluded that nonstate actors were responsible for one chemical weapons incident, and it attributed three cases to the Syrian government from the initial nine cases it investigated that year. In 2017 the JIM found that nonstate actors were responsible for sulfur mustard use at Umm Hawsh on September 16, 2016, while the Syrian government was responsible for the sarin attack on April 4, 2017, at Khan Sheikhoun. The JIM collected samples from Syrian officials and opposition groups, as well as via third parties in Turkey. It also had access to the analytical results of samples collected by the fact-finding mission from autopsies carried out in Turkey.
On July 6, 2017, the head of the JIM, Edmond Mulet of Guatemala, briefed the UN Security Council. After the meeting, he stated to the media, “We do receive, unfortunately, direct and indirect messages all the time from many sides telling us how to do our work.”8 Four months later, Bolivia and Russia voted against a U.S. proposal that supported the JIM findings and that would have extended the group’s mandate by 12 months. Russia proposed that the mandate be renewed for six months on the condition that the group’s attribution of responsibility findings were not final. Japan proposed a compromise 30-day extension. Bolivia and Russia did not accept Japan’s proposal.
Mulet, who succeeded Virginia Gamba of Argentina in early 2017 as head of the JIM, observed that after Syria crossed the “redline” by carrying out the August 2013 chemical weapons attack at Ghouta, the U.S. administration pursued coercive diplomacy rather than military action. “Despite our rigorous, technical and scientific work,” he observed, “the JIM came to an end after the Security Council failed to extend our mandate. These investigations are critical to ensure that those responsible for the use of chemical weapons, a war crime, face their day in court.”9
The Syria issue also overshadowed the CWC conference of states-parties late last year. A joint declaration tabled by Belarus eschewed attributing any responsibility for chemical weapons use to the Syrian government and, in effect, questioned the integrity of the FFM and the JIM investigation methodology by stating, “Investigations of the use of chemical weapons, conducted by the OPCW, should be professional and be based on objective and thoroughly verified evidence.”10 Angola, Bolivia, Burundi, China, Gambia, Iran, Kazakhstan, Malawi, Nicaragua, the Philippines, Russia, South Africa, Sudan, Syria, Togo, and Venezuela associated themselves with this statement.11
Essentially only the Western Europe and Other Group states, in their plenary statements, sought to hold the Syrian government responsible. China, India, Jordan, Pakistan, the Africa Group, and the Latin America and Caribbean Group more generally refrained from taking a public position.
Compliance and Restorative Measures
Compliance in arms control is a state-centered concept. With regard to Syria, the JIM, the fact-finding mission, and the declaration assistance team have articulated findings that either confirm or imply Syrian noncompliance with prohibitions and obligations undertaken under the CWC and with decisions adopted by the OPCW and the UN Security Council.
In situations of confirmed noncompliance, the goal of CWC treaty mechanisms is to restore compliance as quickly as possible and to create conditions that will enable and motivate the noncompliant state to take remedial actions. Measures to this end can range from political to treaty-based measures and may extend to referral of the matter to the UN General Assembly and Security Council. Otherwise, the UN Security Council may authorize the use of military force under Chapter VII of the UN Charter or impose international sanctions.
The question of treaty compliance also arises when nonstate actors are the instigators, particularly with regard to prosecution, extradition, and legal cooperation by states-parties. Also, nonstate actors fighting in Iraq and Syria, while feeling few if any such legal constraints, nevertheless can be viewed as “rational actors” and, as such, may consider the extent to which their actions might result in a lessening of support in Muslim communities or prompt disproportionate military action to be used against them.12
The OPCW Sub-Working Group on Non-State Actors has considered the question of accountability in some detail, including by strengthening CWC implementation legislation, encouraging stronger law enforcement, promoting measures to ensure legal cooperation between states-parties, and engaging in capacity-building work to assist states with chemical weapons attacks prevention, protection, response, and recovery.
On January 23, France launched an international partnership against impunity for the use of chemical weapons.13 Participants of the initiative, consistent with international law and respective national laws, regulations, and policies, undertake a variety of efforts to “hold accountable those responsible for the proliferation or use of chemical weapons.”14 France will act as the coordinator in 2018 and will present the initiative at the EU Working Party on Non-Proliferation and at a NATO meeting. A major objective will be to expand participation by CWC states-parties.
At the launch, then-U.S. Secretary of State Rex Tillerson criticized Russia for having not fulfilled its role as a guarantor of Syria’s implementation of its CWC obligations. He emphasized that “this initiative puts those who ordered and carried out chemical weapons attack on notice. You will face a day of reckoning for your crimes against humanity and your victims will see justice done.”15 Russia criticized the initiative as a “restricted format meeting” from which it was excluded and which “attempts to replace the OPCW and to create an anti-Damascus bloc through the proliferation of lies.”16 Unsurprisingly, attempts to agree and impose restorative measures have not worked.
Scenarios and Options
The upcoming review conference cannot ignore continuing chemical weapons use in Syria. Disagreements about attribution, culpability, and punitive measures, however, may derail the conference and further deepen the political divisions in the organization. It is therefore useful to review options that the OPCW has to manage this problem.
Separate elements of the Syria situation. One strategy would be to separate the relatively noncontroversial Syrian issues on which consensus can be achieved from those that cannot be resolved by consensus and that would be set aside for the time being. Administrative and organizational matters are separable from the attribution of culpability and clearly articulated decisions on what the OPCW should do about it.17
Consensus also should be achievable on a clear and unequivocal condemnation of any use of a chemical weapon by any state or nonstate actor under any circumstances. A similar condemnation should be achievable with regard to any direct or indirect assistance, inducement, or support for such acts by whatever means, i.e., any form of support for the acquisition and use of chemical weapons, such as financial support and the provision of materials, equipment, and know-how.
There also seems to be space for consensus on the need to continue the work of the declaration assistance team and the fact-finding mission.
Under this approach, the review conference would remain silent on issues of attribution of responsibility for the chemical attacks, or it would record the existing differences of opinion about understanding the results of previous investigations of alleged such attacks.18
Attribution of culpability for past and future acts of chemical warfare in Syria could be pursued through processes outside the OPCW and the UN Security Council, including through the efforts by individual countries or groups of states; by mechanisms under the UN General Assembly (e.g., 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); or by multilateral entities such as the Independent International Commission of Inquiry of the Human Rights Council.
Efforts could continue in parallel to enhance the forensic capabilities of the OPCW to agree on common standards and criteria that would further clarify the technical basis for attribution of responsibility. The OPCW has considered forensic investigations of alleged chemical weapons use in the past, and the OPCW Scientific Advisory Board issued its first report on these issues in 2016.19 This report emphasized the desirability to collect and curate reference standards and analytical information even if not immediately actionable and highlighted the utility of impurity profiling and isotopic ratio distribution measurements for attribution purposes.
There has been broad consensus in the OPCW that enhanced forensic capabilities are desirable.20 Yet, the methods, acceptance criteria, and reference standards for such investigations are still being developed. According to media reports in January, unidentified OPCW-designated laboratories were able to link the profiles of samples collected by the UN secretary-general’s mission that investigated the 2013 sarin attack on Ghouta with samples that originated from the sarin attack on Khan Sheikhoun in April 2017, as well as samples taken by the OPCW from the sarin precursor methylphosphonyl difluoride, removed from Syria for destruction in 2014.21
These findings link the sarin formulation found after two chemical weapons attacks in Syria to that declared by Syria in its initial stockpile declarations. Russia, however, challenged these findings, as well as recent reports about the use of chlorine gas in East Ghouta. U.S. and other officials have attributed this chlorine use to the Syrian government.22 Even the further development of chemical forensics methods in the field may become controversial, and scientific findings may become challenged in the absence of agreed common standards used in such forensic investigations.23 In short, governments can view the scientific principles and standards through a prism of their geopolitical implications as they pertain to Syria in particular and the Middle East more broadly.
A firewall approach may prevent the current polarization and politicization from damaging CWC norms and the longer-term integrity of the OPCW. Nevertheless, this may be seen as a de facto legitimization of what some states-parties see as continuing noncompliance with one of the core prohibitions of the CWC. This approach also might undermine the technical consensus about acceptable scientific criteria for evaluating investigation findings.
Force the issue. Another approach would be to break the traditional OPCW approach of decision making by consensus by forcing a vote that would explicitly condemn Syria for its violation of the CWC and simultaneously condemn the confirmed uses of chemical weapons by terrorists. Such a vote could be linked to the imposition of sanctions against Syria.24
This approach would likely compel more governments to clearly articulate their positions and assessments, but there is no guarantee about the vote’s outcome given the increasingly partisan OPCW atmosphere. A sizable percentage of the executive council and the conference could still decide to abstain and not take a public position.25 Voting on this matter also would deepen the divisions within the organization with little short- to medium-term prospects for returning to a common approach based on the principle of equal rights and responsibilities among all member states. In short, such a move could result in recriminations, a dysfunctional treaty regime, and paralyzed institutional and investigative mechanisms.
Other international mechanisms, as well as states individually or through collective mechanisms such as the France-led partnership, would continue to gather and preserve evidence for future judicial proceedings. Such proceedings would require the creation of a special tribunal or the activation of the International Criminal Court, which in the case of Syria would require a referral by the UN Security Council.
Allow the issue to recede quietly. A third option would be to place the issue on the back burner until the geopolitical situation in Syria has stabilized and the geopolitical conditions for future arms control verification steps have become clearer. Such an approach might facilitate cooperation among states-parties in other CWC implementation areas and contribute to what could be presented as a “success” of the review conference, albeit without a clear condemnation of chemical weapons use by Syria.
Measures to mitigate the associated risks could include an informal-track process of consultations to limit damage to the CWC regime and its institutions. An informal review of compliance assessment methodologies in general and as applied in the case of Syria could be carried out. Efforts could be made to enhance OPCW forensic capabilities and to develop a scientifically and technically trusted system of investigations with commonly accepted criteria and standards. The OPCW could continue considering how its competencies and capacities can most effectively deal with nonstate actor threats.
A weakened norm against the use of such weapons would likely be the price for a return to cooperation and unity among CWC parties under such circumstances. Whether this option is politically palatable or wise must be questioned.
There are no easy options for the OPCW to bring closure to the Syria issue. The primary objective must be to prevent any future uses of chemical weapons in the Syrian and the broader regional armed conflict. The use of such weapons is not the only violation of humanitarian law, and resolution of the Syrian chemical weapons challenge is intrinsically entangled with achieving a longer-term, stable, and equitable solution to the Syrian crisis overall.
This debate is occurring in an international environment characterized by active information warfare and attempts to discredit hitherto reliable and respected information outlets in the media and in international organizations and investigation mechanisms, as well as extensive use of “alternative information outlets,” including social media.26 Thus, there is the potential for long-lasting reputational damage to international institutions and mechanisms, including independent investigative mechanisms under UN and OPCW auspices.
A “normal” state-party adheres to the objectives and spirit of the treaty regime even if it is not necessarily 100 percent compliant. Many states-parties still have deficiencies, for example, in their national implementation systems. The usual OPCW approach is to encourage willingness and capacity to achieve full compliance in good faith. What is perhaps needed in the case of Syria is a process closer to that used by the International Atomic Energy Agency in handling the question of Iran’s adherence to its nuclear Nonproliferation Treaty obligations.
A package of political understandings and associated measures adopted incrementally that take into account the political, legal, and institutional cross-linkages of the Syria conflict and the wider geopolitical environment may be required.
In the absence of an agreed multilateral approach, some commentators recommend that France, the UK, and the United States issue “joint announcements summarizing their consensus on facts, and supporting military action if needed, while leaving decisions of national actions to each country according to its constitutional procedures, political traditions and preferences.” They also emphasize that redlines should “never be improvised.”27
The Syria dilemma is a subset of broader considerations within the decision-making levels in capitals. Political and other costs are associated with attempting to force the issue as opposed to seeking compromises or agreed exit strategies with opponents. Such compromises and strategies may be deemed desirable to achieve more positive outcomes in the medium to long term at multilateral security forums. They also may put at risk a country’s values and principles and those of the post-World War II international system, i.e., rules based, consensus driven, and acting within multilateral frameworks.
Finally, political expediency has often resulted in unintended consequences. Governments, policy planners, and other concerned actors do not wish to be unpleasantly surprised or faced with geopolitical and legal problems that are even less tractable than is currently the case. High-level political and operational-level technical engagements on the chemical weapons issue remain vital as the political future of Syria and its government’s legal obligations and responsibilities obtain a de facto but likely provisional and incomplete international imprimatur as a consequence of donors beginning to provide reconstruction and humanitarian assistance and as commercial relationships eventually recover.
Multilateral disarmament and arms control obligations must be implemented in an open, impartial, and professional manner, including with respect to the Syria chemical weapons problem.
1 See UN Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, “Report on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013,” n.d., http://www.un.org/zh/focus/northafrica/cwinvestigation.pdf.
2 Michelle Nichols, “U.S. Hopes for UN Vote on New Syria Toxic Gas Inquiry Next Week,” Reuters, March 2, 2018. Some international investigative bodies, 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 Since March 2011, established by the UN General Assembly in 2016, and the Independent International Commission of Inquiry on the Syrian Arab Republic, will continue to operate.
4 Organisation for the Prohibition of Chemical Weapons (OPCW) Executive Council, “Note by the Director-General: Progress in the Elimination of the Syrian Chemical Weapons Programme,” EC-87/DG.7, December 22, 2017, para. 6.
7 UN Security Council, “Letter Dated 24 August 2016 From the Secretary-General Addressed to the President of the Security Council,” S/2016/738, August 24, 2016 (containing “Third Report of Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism”); UN Security Council, “Letter Dated 21 October 2016 From the Secretary-General Addressed to the President of the Security Council,” S/2016/888, October 21, 2016 (containing “Fourth Report of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism”); UN Security Council, “Letter Dated 26 October 2017 From the Secretary-General Addressed to the President of the Security Council,” S/2017/904, October 26, 2017 (containing “Seventh Report of the Organisation for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism”).
10 John Hart and Ralf Trapp, “Same, Same?” CBRNe World, December 2017, p. 42, http://www.cbrneworld.com/_uploads/download_magazines/CBRNe_December_2017_v_Web.pdf (citing a document titled “Joint Declaration: United for a World Free of Chemical Weapons” by Belarus).
12 Conflict Armament Research, “Weapons of the Islamic State: A Three-Year Investigation in Iraq and Syria,” December 2017, http://www.conflictarm.com/download-file/?report_id=2568&file_id=2574. On the environmental effects of the burning of elemental sulfur at the Mishraq Sulphur Plant in Iraq and reports that the Islamic State group undertook the development of chlorine and sulfur mustard at the Al-Hekma Pharmaceutical Complex in Iraq, see Wim Zwijnenburg and Foeke Postma, “Living Under a Black Sky: Conflict Pollution and Environmental Health Concerns in Iraq,” Pax, November 2017, pp. 16-18, https://reliefweb.int/sites/reliefweb.int/files/resources/pax-report-living-under-a-black-sky.pdf.
13 International Partnership Against Impunity for the Use of Chemical Weapons, “Fighting Impunity,” January 23, 2018, https://www.diplomatie.gouv.fr/IMG/pdf/international_partnership_against_impunity_for_the_use_of_chemical_weapons_declaration_of_principles2_en_cle818838-1.pdf.
14 Participants are Australia, Belgium, Canada, Czech Republic, France, Germany, Italy, Ivory Coast, Japan, Kuwait, Morocco, Netherlands, Peru, Poland, Senegal, South Korea, Spain, Sweden, Switzerland, Tunisia, Turkey, the United Kingdom, the United States, and Ukraine, as well as the European Union. Representatives of the UN Office for Disarmament Affairs and the OPCW also attended the launch.
15 Rex W. Tillerson, “Remarks on Russia’s Responsibility for the Ongoing Use of Chemical Weapons in Syria,” U.S. Department of State, January 23, 2018, https://www.state.gov/secretary/remarks/2018/01/277601.htm.
16 Russian Federation Ministry for Foreign Affairs, “Foreign Ministry Statement on U.S. Allegations Regarding Chemical Attacks in Syria,” 102-24-01-2018, January 24, 2018; “Zayavlenie MID Rossii v svyazi s neobosnovannymi obvineniyami SShA po siriiskomu <<khimicheskomu dos’e>>,” 102-24-01-2018, January 24, 2018, http://www.mid.ru/en/foreign_policy/international_safety/regprla/-/asset_publisher/YCxLFJnKuD1W/content/id/3033941?p_p_id=101_INSTANCE_YCxLFJnKuD1W&_101_INSTANCE_YCxLFJnKuD1W_languageId=ru_RU.
17 Some decisions made in multilateral disarmament and arms control forums do not meet the dictionary definition of “decision.” For example, they may rather underline concern or a commitment by governments to undertake a clarification process.
23 Dr. Sadik Toprak of Bulent Ecevit University in Turkey is currently leading a research project on open source video analysis methodologies for sarin exposure from a civilian forensic pathology perspective.
24 Article XII of the Chemical Weapons Convention allows for the conference of states-parties to restrict or suspend the rights and privileges of a state-party (until the state re-establishes full compliance), to recommend in serious noncompliance cases some collective measures against the perpetrator, and to refer the matter to the UN General Assembly and the UN Security Council.
26 Cranfield University and Sussex University presented baseline data on Syrian chemical weapons use allegations in March 2016. See James Revill et al, “Workshop Summary,” Harvard Sussex Program Occasional Paper (Syria Collection), June 2016 http://www.sussex.ac.uk/Units/spru/hsp/documents/SYRIA%20WORKSHOP%20FINAL%20.pdf
27 Jeffrey Lewis and Bruno Tertrais, “The Thick Red Line: Implications of the 2013 Chemical-Weapons Crisis for Deterrence and Transatlantic Relations,” Survival, Vol. 59, No. 6 (December 2017-January 2018): 100.
John Hart is a senior researcher and the head of the Chemical and Biological Security Project at the Stockholm International Peace Research Institute (SIPRI). Ralf Trapp, an independent consultant on chemical and biological weapons disarmament, held senior positions at the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons.