The OPCW and Chemical Weapons: Towards Criminal Liability?

The Chemical Weapons Convention is widely recognised as the most successful multilateral disarmament instrument. Yet, recent developments (especially in Syria) show that the prevention of chemical attacks and the prosecution of perpetrators remains highly complex. This fifth episode of the Clingendael Spectator series on arms control analyses how the OPCW can maintain the Convention effectively in the face of political contestation.

With 193 States Parties, the Chemical Weapons Convention (CWC) represents a commitment by 98 per cent of the world population to turn their back on chemical weapons (CW) in perpetuity. The CWC obligations fall equally on members and it includes far-reaching verification procedures to detect chemical warfare agents in militarily significant quantities.

The enormous stockpiles of chemical weapons accumulated during the Cold War are expected to be destroyed by 2023. But eliminating large, declared chemical weapon programmes has not made the challenge of preventing CW use less complex.

Since 2012 chemical weapons have been used in Iraq, Malaysia, the Syrian Arab Republic and the United Kingdom by State and by non-state actors. This has posed serious challenges to the Organisation for the Prohibition of Chemical Weapons (OPCW), which oversees and verifies adherence to the CWC.

Chemical weapons use: From Syria to Salisbury
After hundreds of people were exposed to the nerve agent Sarin during fighting in Syria in August 2013, Russia and the United States worked to achieve Syrian acceptance of a disarmament agreement under the auspices of the United Nations (UN). Syria agreed to join the CWC, and Russia and the United States agreed on a Framework for Elimination of Syrian Chemical Weapons.

By the end of September 2013, disarmament cooperation was agreed. An extensive international coalition was mobilised to disarm Syria of chemical weapons using a creative and cooperative approach. The CWC seemed validated as an effective instrument in conflict conditions.

Yet, the OPCW-UN Joint Investigative Mechanism (JIM) created to investigate allegations of CW use soon attributed Sarin attacks in 2014, 2015 and 2017 to Syrian government forces. The JIM attributed CW use to the Islamic State in Iraq and the Levant (ISIL) as well.

The United Kingdom also asked the OPCW in March 2018 to help investigate the poisoning of three individuals in the city of Salisbury. The OPCW confirmed the findings of UK authorities that the chemical was a nerve agent of a type known as Novichok. In September 2018, the UK Crown Prosecution Service announced that the evidence collected justified criminal prosecution of two Russian citizens.

Given the nature of the chemical, the operational experience of the accused and the motive to target the individuals poisoned, the UK government determined that ‘there is no plausible alternative explanation for what happened in Salisbury than Russian state responsibility.’

June 2018: From Verification to Investigation
The CWC was negotiated at a time when the targeted use of small amounts of poison or the use of CW by non-state actors in conflicts were not primary concerns. The OPCW has thus been preparing for a transition from its primary mission to address new threats.

On 29 May 2018, 11 countries pointed to the ‘unprecedented threat’ to the CWC posed by CW use and requested a Special Session of the CWC States Parties ‘as soon as possible’. At the 26–28 June 2018 Special Session of the Conference of States Parties (hereafter Special Session) a decision called Addressing the Threat from Chemical Weapons Use was adopted by voting (supported by 82 States Parties with 24 against).

The Special Session called for a mechanism to investigate alleged use of chemical weapons in Syria, and an Investigation and Identification Team (IIT) was created to help identify perpetrators of CW use in Syria under the authority of the OPCW Director-General (DG).

The OPCW was also to bring forward specific proposals to establish independent, impartial, expert contributions to an investigation of any possible chemical weapons use and proposals to enhance the capacity and tools of the Secretariat to strengthen implementation of the Convention verification regime.

The annual Conference of States Parties scheduled for November 2018 was to be followed immediately by the Fourth CWC Review Conference, and some countries felt that these meetings would allow more time to assess proposals and additional opportunities to build consensus around a course of action. However, others saw an urgent need to convene against the background of escalating international sanctions while military action to eliminate chemical weapons was not excluded.

The return of politics: Sovereignty and attribution
Although the June 2018 decision achieved a comfortable majority, a significant minority of CWC States Parties voted against it. Some were motivated by a political imperative to defend the Syrian government against allegations of CW use. However, others were concerned about the legitimacy of decisions taken by voting; lack of clarity around the role of the OPCW in attribution and the low probability that the decision would be effective.

One of the strongest objections to the establishment of an investigation mechanism in June 2018 was that it might undermine the sovereignty of CWC States Parties

One of the strongest objections to the June 2018 decision was the risk that the role of the Director-General in attribution might undermine the sovereignty of CWC States Parties. In explaining its vote against the 2018 June decision, India emphasized that ‘while the Convention gives primacy and oversight to the Executive Council and the Conference of States Parties over the functioning of the Technical Secretariat, this decision will grant the Director-General, as an individual, unprecedented and unchecked powers. This opens itself to partisan use of the institution of the Director-General.’

Some opponents of the IIT considered it to be a ‘pyrrhic victory’ for its supporters. The IIT measures within the CWC to address non-compliance are somewhat limited, and in ‘cases of particular gravity’ the issue would be referred back to the UN General Assembly and the Security Council.

As the Special Session was prompted by paralysis at the UN Security Council, to some states the process looked circular and, from this point of view, the June 2018 decision put useful aspects of existing OPCW work at risk with a low probability of a substantive outcome.

After the JIM was terminated, an incident in the Syrian city Douma in April 2018 became the subject of an OPCW Fact-Finding Mission (FFM). The FFM mandate was to determine whether there were reasonable grounds to believe that CW were used, but without attributing use to any party; The FFM depends on a bilateral agreement between Syria and the OPCW Director-General and some were concerned that the contentious IIT would undermine fact finding.

Russia has consistently rejected the ITT and a public campaign was launched to cast doubt on the validity of attribution findings

The UN and OPCW reports on CW use in Syria have been subject to unrelenting criticism from Russia. Russia has consistently stated that it does not intend to cooperate with the IIT or finance its activities, and has organised multiple briefings in different formats to argue that the initiative was based on an illegitimate foundation and erodes confidence in the technical basis for its findings. A public campaign has had the same objective of casting doubt on the validity of attribution findings, if not discrediting them completely.

The first IIT Report
In April 2020, the urgent need to pay close attention to CW disarmament was underlined when the OPCW produced the first report of the IIT to investigate allegations of CW use in Syria (hereafter IIT Report). The main conclusion was that there are reasonable grounds to believe that individuals belonging to the Syrian Arab Air Force used CW on three occasions in 2017.

Whether the OPCW was now taking on the role of adjudicating compliance with the CWC was raised by the somewhat imprecise language of the 2018 decision. On the release of the IIT Report the OPCW Director-General made it clear that the IIT mandate is to establish facts, and no new legal authorities were passed to the OPCW.

The Director-General explained that all of the actions taken by the IIT were anchored in the CWC and other pre-existing decisions of the United Nations. He noted that the IIT ‘is not a judicial or quasi-judicial body with the authority to assign individual criminal responsibility, nor does the IIT have the authority to make final findings on non-compliance with the Convention. It is up to the Executive Council and the Conference of the States Parties to decide the next steps.’

Criminal liability for CW use attaches to both legal and natural persons, but the IIT Report explained that perpetrators were identified where information would allow an ordinarily prudent person to reasonably believe that an individual or entity was involved in the use of chemical weapons.

Without assigning criminal responsibility, the IIT Report pinpoints cases warranting further investigation and prosecution by competent judicial bodies, and the information collected by the OPCW can facilitate and expedite fair and independent criminal investigations and prosecutions.

The findings of the investigation team (IIT) are unlikely to lead to successful criminal prosecution of identified perpetrators of the chemical attacks

That said, the prospect of successful criminal prosecution of identified perpetrators based on the IIT Report or the information on which it is based is probably low. The OPCW has a working relationship with the International, Impartial and Independent Mechanism (IIIM) established by the UN General Assembly to assist in investigating and prosecuting persons responsible for war crimes in Syria since March 2011.

The IIIM is building case files that might be used in criminal prosecutions. Information from the IIT could provide useful context and background, but it is not evidence that would meet the standard of proof required in prosecutions.

The OPCW’s agenda: Verification and investigation
Whether the IIT Report will lead to effective action on the Syria file remains to be seen, and at the time of writing it was not known how the OPCW Executive Council or the UN Security Council would respond to it.

The Executive Council meetings in July and October 2020 will discuss the implications of the IIT Report, and along with the Conference of States Parties in November 2020 these meetings will determine whether Syria is found to be in non-compliance with the CWC – and if so, what consequences should follow.

The United States referred to actions ‘of a political, diplomatic, economic nature’ in its first reaction in the IIT Report. A military response to the findings in the IIT Report is unlikely while the OPCW is discussing next steps.

Still, for many CWC States Parties an investigation without attribution was unacceptable. In December 2019, the United States enacted the Caesar Syria Civilian Protection Act containing targeted sanctions on those considered to have enabled CW use in Syria. It highly likely that other partners in the No Impunity! group will also consider whether the IIT Report requires additional targeted sanctions.

Although Syria-related questions attract the most attention, other initiatives may be more important in the medium-term. For example, prior to the most recent reports of CW use in Syria an OPCW Declaration Assessment Team (DAT) was discussing discrepancies in the Syrian declaration of CW required under the CWC.

In time, the Chemical Weapons Convention might be revised to incorporate new verification tools and methods

Recent allegations raise questions about the comprehensiveness as well as the accuracy of the existing declaration. As a result, the Special Session invited the OPCW to propose enhancing the CWC verification regime, which might lead in time to a revision of the Convention to incorporate new verification tools and methods.

The OPCW’s new Centre for Chemistry and Technology
To increase investigative capabilities, the Technical Secretariat of the OPCW has been enhancing knowledge and skills of staff in areas such as crime scene management, witness interviews, evidence collection, and forensics. A core group at the OPCW could be the basis an investigation support mechanism able to build an international team at short notice with expertise tailored to an alleged incident.

The core group could make and sustain relationships with relevant international bodies and networks and also draw on the capacity of the OPCW’s new Centre for Chemistry and Technology (ChemTech Centre).

The ChemTech Centre could itself be an important node in an international network of laboratories able to support an investigation and contribute to adapting the verification provisions of the CWC to changing CW threats. The ChemTech Centre is an opportunity to extend the global expert engagement with research and innovations in chemistry relevant to the CWC.

The focus on investigation and attribution could contribute new insights into how verification can be adapted to new threats and promote law enforcement instruments to prevent and deter CW use. The new capabilities could be particularly useful to investigate acts of chemical terrorism or CW use by non-state actors, contingencies where states that have limited national capacities could call on the OPCW for assistance.

Conclusion
The Chemical Weapons Convention is widely recognised as the most successful multilateral disarmament instrument because of its comprehensive provisions, extensive verification system, non-discriminatory character and almost universal participation. The attribution of CW use to the government of Syria divided the UN Security Council, and the OPCW will continue to be a place where the Syria file generates controversy.

The first IIT Report should have a positive effect because it has been produced in a way that addresses the concerns of some states that opposed the 2018 Special Session. Still, many difficult questions remain to be answered.

Today, Syrian government forces have less incentive to use CW in combat, but increasingly desperate opponents might

The CWC prohibits CW use even if a state faces what it considers an existential threat. But will the prohibition of CW be respected if those weapons demonstrate battlefield utility? Today, the Syrian government forces have less incentive to use CW in combat, but increasingly desperate opponents might.

Key countries, notably the United States, are assessing whether arms control instruments have a significant enough impact on security problems to be worthwhile. The States Parties to the CWC must decide whether Syria is in non-compliance with the Convention. Their deliberations will be important in the context of CW, and they will influence the wider discourse about the value of arms control and the feasibility of disarmament.