Here’s a great new piece by Jonathan Tirone, one of the very best reporters on IAEA matters. A number of important issues covered, including how the IAEA handles intelligence information – a theme also raised in the Russian statement I posted yesterday. Also some critiques of the IAEA’s institutional culture as it has evolved under the leadership of DG Amano, and the links between that culture and the credibility problems the IAEA is experiencing in the perception of some states.
I don’t know if anyone has ever wondered, but I know I criticize the IAEA a lot, and it might be natural to ask why. It’s certainly not that I don’t think the IAEA is an important international organization. Quite the contrary. I think the IAEA is a vital international institution, that at its best plays an indispensable role as an independent, technical safeguards body, able to bring some objectivity to disputes between states about the implementation of nuclear safeguards obligations. I think the IAEA, and former DG ElBaradei, deserved their shared Nobel prize for the exceptionally important role they played in the lead up to the 2003 invasion of Iraq.
I criticize the IAEA not because I want it to go away, or be less influential. Exactly the opposite. I want it to retain its positive influence. And to do that, the IAEA has to take the constructive criticism that the people quoted in this article, and in the Russian statement, are offering about problems in the IAEA’s institutional culture and modus operandi, and actually make the necessary changes so that the IAEA remains capable of having that influence.
I LOVE this statement that was just made by the Russian IAEA representative, Grigory Berdennikov, at an IAEA symposium. I think he hits on so many of the right themes, and makes important observations and recommendations. Look at what he says about the use of intelligence information by the IAEA, and also what he says about the completeness/correctness issue (I hope Laura Rockwood is listening). I’ve inserted the original document above, but I’ll also paste below the text in full. Highly recommended reading.
STATEMENT BY THE HEAD OF THE DELEGATION OF THE RUSSIAN FEDERATION,
AT THE SYMPOSIUM ON INTERNATIONAL SAFEGUARDS: LINKING
STRATEGY, IMPLEMENATION AND PEOPLE
Vienna, 20-24 October 2014
Mr. Chairman, respected participants of the symposium,
First of all, I would like to note that Russia was one of the originators of the IAEA safeguards system and throughout the Agency’s history consistently supported its effective implementation and development. We always felt that the
safeguards system is crucial for the wellbeing of the Non-Proliferation Treaty and the regime build on its foundation. The safeguards system is not something cast in stone or frozen but is a living organism that for its very survival has to change in
order to adapt to the changing world and the growing demands placed upon it by the ever more complex requirement of preserving peace and international security in conditions of rapidly developing technologies and changing relationships among nations. However in the process of such adaptation the system should preserve its core features and functions which have been tested by time. It should remain objective, depoliticized, technically credible, understandable for Member States
and based on rights and obligations of the Parties in accordance with Safeguards Agreements they have concluded.
Classic safeguards were fully in line with those principles. They were based on facility-specific approach and were underpinned by technical safeguards criteria that were established for each type of facility or location outside facilities and
specified the scope, the normal frequency and the extent of the verification activities required to meet the inspection goals. In other words, verification activities were predetermined by quantity and quality of nuclear material as well as
quantity and type of nuclear facilities in a State. This system was by nature resistant to political or other extraneous considerations and generated very little risk in terms of undue interference into the affairs of States unrelated to the nuclear sphere. In addition it was universal in the sense that verification requirements for facilities of certain types were the same for all States with the same type of legal obligations regardless of their affiliation or political system. Member States were assured that any decision by the Secretariat was based on good technical sense and science.
Now the situation has become more complicated. A concept of safeguards implementation at State-level (the SLC) has emerged and has been developing by the Secretariat. It had many names, however, the main idea was the same –
frequency and intensity of verification should be determined by the Secretariat for each State as a whole, not for each facility type. This should be done on the basis of all available safeguards relevant information including provided by third Parties and using so-called State-specific factors. This concept is claimed to have certain advantages, particularly in terms of achieving some economy of the scarce resources, including human efforts by concentrating on points of real concern. But it also has serious vulnerabilities. First and foremost it makes safeguards implementation prone to politicization. That is why it is essential that Member States are assured that possible modifications in frequency and intensity of safeguards activities in a State are caused by honest technical analysis of facts on the ground and not by individual or collective biased thinking or prejudices. The IAEA should remain an objective mechanism for verifying non-proliferation obligations of States. It should not become an instrument for political pressure against certain countries or a means for rewarding their political loyalty. In recent years Russia as well as many other IAEA Member States has taken serious efforts aimed at ensuring that the new safeguards system is equipped with necessary protective mechanisms.
Those of you who find themselves in the London area on 28 October may be interested in this panel event on nuclear weapons that I am chairing. The panel will discuss the legality of the use of nuclear weapons under different international law regimes almost 20 years from the Advisory Opinion of the International Court of Justice. The event will also celebrate the book launch of: Nuclear Weapons Under International Law, G. Nystuen, S. Casey-Maslen and A. Golden Bersagel eds (Cambridge University Press, 2014). Attendance is free, but please register by emailing Eliza Watt.
There’s a lot of buzz in the Twitterverse about this new article in the NYT on the subject of the caches of pre-1991 chemical weapon munitions that have been found in Iraq since the 2003 invasion, and the injuries that they have caused, particularly to U.S. soldiers serving in Iraq.
The piece is very important and paints a terrible picture of the wounds received by U.S. soldiers who inadvertently came into contact with these discarded and most often buried munitions. It is a damning portrayal of how the U.S. military mishandled both the facts concerning the existence of these caches, as well as the care for the injured soldiers.
The piece also provides further information on the number and extent of these caches than I’ve seen before. It says that in all 4500 such non-militarily-usable, yet still extremely dangerous, munitions have been discovered. It further observes, disturbingly, that at least some of this stockpile is now in the hands of ISIL; a topic also addressed recently by Joe Cirincione and Paul Walker here.
There has been some misinterpretation among some of the less sophisticated denizens of the Twitterverse, that this report constitutes evidence supporting the U.S. narrative justifying the 2003 invasion. However, the article itself points out several times, correctly, that the fact of the existence of these caches is not a revelation. It’s been known since the 2004 Duelfer Report. These munitions are old, discarded and non-militarily-usable. They are not the droids the empire was looking for. So no, this article does not provide any support to the (still) erroneous U.S. justification for the 2003 Iraq war.
What it does do is several things. First and foremost, as I mentioned above, it is a shameful narrative about how the U.S. government and military treated U.S. soldiers who were injured by these discarded CW munitions. Second, it does provide greater understanding of the scope of Iraq’s existing caches of still very dangerous chemical weapons, including information about where many of their components came from (hint – the West).
There are a couple of arms control law points that stuck out to me in this article. One is the question of whether the chronicled failures of the U.S. military to properly report and dispose of the CW munitions they found in Iraq constitute a violation by the U.S. of the Chemical Weapons Convention. I honestly haven’t had time to give this a lot of thought yet (I’m teaching three courses this semester), but I would be interested in the views of CWC experts like Jean-Pascal Zanders on this question. My first impression would be that, since these were not CW on U.S. soil, or in any way owned by the U.S., therefore U.S. responsibility would not be triggered. I suppose the only thing that is holding me back from that tentative conclusion is the fact that, as an occupying power, the U.S. was legally responsible at least to some extent for what went on in their occupied territory during the period of occupation. Would this responsibility extend to reporting and disposal of old CW munitions they found in Iraq? I honestly don’t know.
One point that is driven home forcefully to me by this article is the clarity it provides concerning the moral and legal responsibility that Western nations have for supplying Iraq with chemical weapons-related-materials during the 1980’s with (as we now know) full knowledge that they would be used against Iran’s military, and a reasonable foreseeability that they would also be used against civilians (which they were). Readers will recall that I posted a paper written by one of my students on this subject last year, and I continue to recommend it. This is a truly shameful chapter of history for Western countries, including the United States. To have knowingly supplied chemical weapons-related-materials to Saddam Hussein, knowing good and well that he would use them. I find that unconscionable, and I have never heard anyone offer any kind of reasonable explanation or justification for it. Nor, I think, could there be one.
[Cross-posted from The Trench]
Yesterday the Smithsonian “Smartnews” site featured the article Robot Ships And Pepper Spray—the Latest in Pirate-Fighting Tech. According to the piece, UK researchers are actively looking into mobilising capsaicin – the active ingredient in pepper spray – to fend off pirate attacks at sea:
The age of naval battles between huge ships on the high seas seems to have passed into distant memory. Instead, some of the most devastating attacks on giant vessels in recent years have been executed by boats small enough to get through the larger ships’ defenses.
But now, governments around the world are working on technology designed to stop these attacks. In the U.K, researchers are working on a remote monitoring system—called the MATRiX system—that resituates the traditional responsibilities of a lookout to land-bound control rooms. The system has a connected network of anti-pirate deterrents attached to the outside of the ship. If a threat is detected, the deterrant [sic] system releases two relatively simple tools—nets that will catch in the propellers of attacking boats and a fog of capsaicin, the active ingredient in pepper spray (and bear repellent).
My question is: how does that fit with international law?
It stretches the understanding of non-prohibited purposes as defined in Article II, §9(d) of the Chemical Weapons Convention (CWC), which allows the use of riot control agents for law enforcement purposes, including domestic riot control. The concept of “law enforcement” is vague in the CWC and efforts are underway to clarify the notion in the context of various research and development activities concerning incapacitants.
In this particular case, however, it seems that not even law enforcement officials would the responsible for the decision to release the capsaicin against pirates (unless they are the ones sitting in “land-bound control rooms”). The afore-mentioned article suggests that the device would be deployed by the merchant ship under attack. Even if law enforcement officials would be at some land-based centre, would they be able to override the captain’s authority or would they just give the captain the green light to activate the system when needed? If the captain must call in authorisation from land, what country’s jurisdiction would come into play? The country under whose flag the ship is sailing? The country on whose territory the control rooms are located? The country whose nationality the law enforcement officials possess?
In light of the ongoing privatisation of security (who actually uses force to defend the ships against attacks? who sits in the land-based control rooms?), the blurring of boundaries between armed conflict and counter-terrorism / -crime operations, and the banalisation of riot control agents, it would appear that legal clarity about this new contraption should be established by the relevant national authorities and the international community (represented by the Organisation for the Prohibition of Chemical Weapons—OPCW).
Having said that, capsaicin is a toxin—a poison produced by a living organism. As such the legitimacy of its application is also covered by the Biological and Toxin Weapons Convention (BTWC). That treaty does not distinguish between whether the compound was derived from the chili pepper or produced synthetically. More importantly, however, the BTWC does not make an exception for law enforcement purposes. This leaves the question as to whether “law enforcement” can be considered to be one of the “other peaceful purposes” in Article I.
As it stands now, nobody has really been able to give me a sound explanation why the provisions of the CWC should supersede those of the BTWC.
I am open to good legal arguments.
I’m pleased to host a brief informational post from friend of ACL Onur Guven, who is a Researcher in Public International Law at the prestigious T.M.C. Asser Institute.
OPCW Confirms the Use of Chlorine as a Weapon in Syria in the Months of May, June and July 2014
By Onur Guven, LLM
Based on the latest report of the OPCW Fact-Finding Mission in Syria on Alleged Chlorine Gas Attacks (FFM), the Organisation’s Executive Council (EC) concluded last Friday that “chlorine was used as a weapon systematically and repeatedly”. The chemical, which is a common household chemical and is also used for example in water purification installations, has been used as a weapon against villages in Northern Syria. The attacks have not yet been attributed to any of the parties to the conflict in Syria. Questions remain whether the Syrian government is in compliance with the Chemical Weapons Convention to which Syria has acceded in October 2013. The FFM brief on the OPCW website reports the use of chlorine gas as a weapon while HRW had documented numerous uses of aerial dropped barrel bombs throughout the war, including its report on the use of chlorine gas cylinders embedded in barrel bombs and dropped from helicopters. On the conclusions of the EC the OPCW Director-General comments that “[i]t is a tragic irony that a hundred years after chlorine was first used on the battlefield, its misuse to kill and terrorise unarmed civilians has again raised its ugly head.” It is interesting that the Director-General refers to WW1. Prior to and during WW1 the 1899 Hague Declaration already provided restrictions on the use of gas projectiles which have the sole object of diffusing asphyxiating or deleterious gases. The German Empire initially sought to avoid this restriction by releasing chlorine gas through cylinders when the wind was in the direction of enemy positions. The escalating gas warfare in WW1, including the use of other gases, led eventually to the adoption of the prohibition on the use of “asphyxiating, poisonous or other gases, and (of) all analogous liquids, materials or devices” as found in the 1922 Washington Naval Treaty (Article 5) and the 1925 Geneva Protocol. The same definition is used in Article 8, para. 2(b) (xviii), of the Rome Statute which recognises the “employment of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” as a war crime. Questions had been raised earlier on the interpretation of Article 8 in view of the drafting history of the Kampala Amendments and the text of the provision (see Alamuddin and Webb, Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute, Journal of International Criminal Justice, Vol. 8 (2010), pp. 1219-1243; Akande, Can the ICC Prosecute for Use of Chemical Weapons in Syria?, EJIL: Talk!, August 2013; and Heller, Syria, Chemical Weapons, and the Incoherence of the VCLT, Opinio Juris, August 2013). The question now is whether these recent cases will provide opportunity to clarify the issue.
In a letter dated 7 July 2014 Iraqi Ambassador to the United Nations Mohamed Ali Alhakim notified UN Secretary-General Ban Ki-moon that ‘armed terrorist groups’ had entered the Muthanna complex on 11 June. The next morning a project manager observed them looting of some equipment via the camera surveillance system before the ‘terrorists’ disabled it. The document, as cited by the Associated Press, explicitly referred to the capture of bunkers 13 and 41, two locations still holding chemical weapons (CW) so severely damaged during the 1991 war to liberate Kuwait that until today they could not be disposed of in a safe way.
The capture of two CW storage bunkers at Muthanna by Islamic State of Iraq and the Levant (ISIL, now shortened to Islamic State) has raised fears of chemical warfare in Iraq as well as Syria. The insurgent grouping’s habitual resort to extreme violence in combat, its strict upholding of Sharia law, and uncompromising attitude towards ‘non-believers’ leave many a commentator convinced that it will stop at nothing in its pursuit of the Islamic state.
Analysis of documents relating to the dismantlement of the Muthanna complex in the 1990s and the subsequent monitoring of the site however demonstrates that it would be all but impossible for ISIL to acquire and use Iraq’s former CW, or for that matter, the toxic residues of warfare agents.
Should the ISIL fighters still find sarin, then the probability of the agent’s degradation below any useful degree of purity is extremely high. An additional 20 years have passed since the UNSCOM Chemical Demolition Group sealed the storage bunkers. Mustard agent is far more stable, but both UNSCOM and UNMOVIC reported significant degradation. 155mm artillery rounds were found to contain hydrogen gas and other breakdown products leading to considerable internal pressure. Moreover, the thick-skinned shells proved particularly difficult to penetrate and drilling risked ignition of the built-up gases.
UNSCOM selected two bunkers at Al Muthanna for their solid structure. After completion of destruction operations, it sealed the structures. They blocked off all entrances with two brick walls and a 5cm layer of tar in between them. A third brick wall was erected at a distance of 1 metre from the second wall and the space in between was filled with reinforced concrete. Together, the overall thickness of the entrance seals amounts to 1.5 metres. The hole at the top of bunker 13 containing the sarin rockets and precursor chemicals from a US bomb in 1991 was closed by filling the whole inner room with soil through that hole and then plugging it with reinforced concrete.
Any penetration of the bunker by ISIL fighters would require major dismantling and rubble removal, all the while not knowing the exact location of the toxic chemicals, propellants and explosives and facing potential exposure to contaminated soil or air. Even the Organisation for the Prohibition of Chemical Weapons (OPCW) is still considering how it might proceed to determine the bunker’s exact contents.
More technical details on the state of Iraq’s former CW and tables on the contents of the bunkers are in an article I wrote for the August edition of CBRNe World. Registration may be required, but it is for free.
[Cross-posted from The Trench.]