No humanitarian justification for biological weapons

[Cross-posted from The Trench]

On 11 January Digital Journal, an online publication touching upon current events and with a penchant for science and technology affairs, published an Op-Ed by Megan Hamilton, an animal and nature-loving journalist based in Costa Rica, on Technology and the art of modern warfare. The piece is worrying enough for all the new technologies under consideration: fast-firing guns that could be deployed on satellites, direction-changing bullets, laser guns to knock out enemy drones, and so on.

The item that caught my attention was a discussion about a project once run by US Defense Advanced Research Projects Agency (DARPA) that turned insects into surveillance cyborgs (See also the Gizmodo blog). As Hamilton described it:

How? Through the HI-MEMS, or Hybrid Insect Micro-Electrical-Mechanical System concept. Electrical circuits are implanted in bugs while they are in the pupa stage. Once they become adults, signals sent through radio waves trigger the circuits, meaning that the insect is now remote-controlled. Surveillance equipment is attached, meaning these bugs are now invaluable and undetectable tools for battlefield exploration.

cybug1

Insect cyborg (Source: Gizmodo, Australia)

DARPA cancelled the project. Hamilton, however, explored the topic of entomological warfare further with Jeffrey Lockwood, author of Six-Legged Soldiers: Using Insects as Weapons of War (Oxford University Press, 2010). It reveals interesting insights. For instance, technology has not yet been able to develop a drone the size of an insect—an entomopter—because of the size needed for an on-board energy source.

Once past the technological fascination of this type of weapon design for warfare or intelligence gathering, Hamilton pressed Lockwood on the morality of such projects and human and animal rights. Here things do get hairy.

Morality of entomological warfare

Lockwood took a kind of long-winded approach to answering the question. First, he mentioned the standards set by ‘just war theory’. Under jus in bello one imagines that formally prohibited weapons would be banned in warfare. He is generally correct when positing:

And then, deploying a weapon system of creatures to inflict harm on other humans surely constitutes a form of biological warfare (although international law is surprisingly vague on insects—microbes are quite another matter).

But then he wondered if biological warfare is necessarily wrong. He referred to the scenario of a debilitating but not deadly disease being transmitted by mosquitoes to enemy combatants such that it weakens the opposing forces and the goal of the attack can be achieved with considerably less loss of human life than would be the case with conventional weapons. He continued:

Of course, this supposes that one has adopted a consequentialist (probably utilitarian) ethics in which all that matters is the outcome. Such an ethical system might well conflict with the decisions made using a deontological approach in which duties/rights provide the moral constraints (rather than outcomes). So to return to your question, we might violate the rights of humans or other creatures (most often thought to be sentient which then raises the questions of whether insects can suffer—I think so, but many would disagree) by using the entomological weapons even if these arms reduced human deaths relative to other tactics.

[I assume that the passages between parentheses in the above quotes are Hamilton’s asides.]

The interview passage mixes up a few aspects of constraining biological warfare, namely the use of pathogens as a method of warfare, the deployment of insect vectors to propagate the disease agent, and the resort to insects in combat.

Yes, biological warfare is necessarily wrong

On the first issue whether all biological warfare is necessarily wrong, the answer is an unambiguous ‘yes’. The 1972 Biological and Toxin Weapons Convention (BTWC) contains no criteria of lethality or incapacitation to prohibit the development, production, stockpiling or any other form of acquiring microbial or other biological agents. This ban is absolute and therefore accepts no exceptions. Indeed, according to Article I, para. 1 of the BTWC the retention of disease agents is only justified for prophylactic, protective or other peaceful purposes. And then only if the nature or volume of the agent in possession conforms to those purposes.

This principle is known as the General Purpose Criterion. It emerged during technical discussions in the late 1920s and early 1930s in preparation of the disarmament conference due to start in 1933 as a way to address the dual-use problem, capture future scientific discoveries and technological developments, and frame a definition of chemical and biological weapons that does not allow for any exception. A criterion such as lethality was explicitly rejected, because the then proposed definition for chemical weapons had to capture irritants and incapacitants, such as riot control agents. Both the BTWC and the 1993 Chemical Weapons Convention have the General Purpose Criterion at the heart of their respective prohibitions.

While it is true that the BTWC does not explicitly refer to the use of biological weapons, it makes explicit reference to the 1925 Geneva Protocol banning the use of both chemical and biological modes of warfare. Moreover, at the Fourth Review Conference in 1996, the states parties to the BTWC explicitly recorded their understanding that the comprehensive prohibition on biological weapons in Article I covers their use too.

So, yes, all biological warfare is necessarily wrong, even if certain modes of pathogen use may appear more humane on the surface.

Yes, the BTWC bans the use of insects to spread disease

The second issue raised in the interview concerns the use of insects. In the past, insects have been both considered and used as vectors to spread disease. For instance, during the Second World War Japan notoriously deployed infected fleas to provoke plague epidemics in China. Allied Powers too investigated the option.

Again the BTWC’s prohibition is explicit. Article I, para. 2 proscribes the development, acquisition by any means and possession of weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict.

So, yes, developing, cultivating or possessing insect vectors with the intent of having them deliver a pathogen is proscribed. No exceptions allowed.

In my opinion, although I am not aware of any legal expert ever having made that point explicitly, the use of insects with the intent to have them sting or bite humans or animals would also be prohibited under the BTWC as the insects would almost invariable inject some kind of poison—a toxin—into the victim.

But does the BTWC ban the use of insects?

The third question whether the use of insects in more generic ways is a proscribed mode of warfare is more ambiguous. The BTWC does not mention insects per se. Biological agents cover human, animal and plant diseases. Certain insects attack plants and may destroy agricultural crops. Again, in the past belligerents have not shied away from deploying them to harm the enemy in both open and covert warfare operations. Psychologically, agricultural warfare lies close to biological warfare. Thus, for example, Protocol III (and Annexes) on the Control of Armaments of 23 October 1954 to the Treaty of Economic, Social, and Cultural Collaboration and Collective Self-defence (also known as the Brussels Treaty) of 17 March 1948 defined biological weapons as follows [emphases added]:

(a) A biological weapon is defined as any equipment or apparatus expressly designed to use, for military purposes, harmful insects or other living or dead organisms, or their toxic products.

(b) […], insects, organisms and their toxic products of such nature and in such amounts as to make them capable of being used in the equipment or apparatus referred to in (a) shall be deemed to be included in this definition.

(c) Such equipment or apparatus and such quantities of the insects, organisms and their toxic products as are referred to in paragraphs (a) and (b) which do not exceed peaceful civilian requirements shall be deemed to be excluded from the definition of biological weapons.

The protocols to the Brussels Treaty allowed Germany and Italy to join the Western European Union, which in turn paved the way to their NATO membership.

Would the states parties to the BTWC consider an allegation of insect use as a possible violation of the convention? Actually, yes. They did so in 1997.

As I summarised developments in the 1998 and 1999 editions of the Yearbook published by the Stockholm International Peace Research Institute (SIPRI), on 30 June 1997 Cuba submitted a request to Russia, one of the three co-depositories of the BTWC, to convene a formal consultative meeting to investigate an alleged US attack with BW agents in October 1996.

That was the first time since the entry into force of the BTWC in 1975 that a state party formally requested the international community to investigate a breach of the convention. Cuba did not lodge a complaint with the UN Security Council under Article VI of the BTWC but invoked a procedure to strengthen the implementation of Article V adopted by the Third Review Conference of the BTWC in 1991. According to this procedure, the formal consultative meeting must be preceded by bilateral or other consultations among the states involved in the dispute. Following the submission of the request, the depositories of the BTWC must convene the formal consultative meeting within 60 days of the receipt of the request.

According to the allegation, a US anti-narcotics fumigation plane flying from Florida to Grand Cayman crossed Cuba with Cuban authorization on 21 October 1996 and was observed by a Cuban civilian aircraft to spray unknown substances intermittently. On 18 December the first signs of a plague with Thrips palmi karay, a minute insect belonging to the order of Thysanoptera which are plant eaters and may transmit virus diseases of plants, appeared. While Thysanoptera live wherever plants are, Cuba stated that this particular insect was indigenous to Asia and exotic to Cuban territory, although since 1985 its presence has been noted on several Caribbean islands. By January 1997 other parts of Cuba had also been affected and the insects continued to spread throughout the island in the spring and affected many crops. In October, the Cuban government reported that 20,000 tonnes of produce, including 18,000 tonnes of potatoes, had been lost to Thrips.

Following a request in December 1996 to clarify the incident, the US stated on 12 February 1997 that the pilot had noted the Cuban civilian aircraft but was unsure whether he had been seen and therefore used the smoke generator of his aircraft to secure a positive visual contact ‘following prudent and safe aviation procedures’. The US further added that the tanks for the aerosol sprinkling system had actually been used to carry fuel in view of the long-distance flight. On 28 April, in a note to the UN Secretary-General, Cuba formally accused the United States of biological warfare. The US State Department rejected the Cuban accusations and made its own version of events public on 6 May. Cuban officials discarded the statement for its ‘lack of seriousness’. In a second letter dated 27 June to the UN Secretary-General Cuba formally rejected the US explanations: (a) the regulations of the International Civil Aviation Organization do not mention the use of smoke generators to signal the position of aircraft in flight and such use is not a known practice except for aerobatics; (b) crop duster planes manufactured and operated all over the world are not equipped with smoke generators; and (c) the plane had no requirement to carry extra fuel in the herbicide tank since its normal fuel load sufficed amply for the flight. Even if some extra fuel had been carried in the tank, then it was technically feasible to fill it with another substance too, allowing for initial consumption of fuel and then for spraying.

The formal consultative meeting began in Geneva on 25 August in closed session, but failed to resolve Cuba’s claim after three days of talks, because, according to the chair, British Ambassador Ian Soutar, ‘it was not possible to draw a direct causal link’ between the overflight and the outbreak. As the Thrips palmi occurs in Haiti, the Dominican Republic, Jamaica and in Florida, the main unresolved question is whether the insect could have been introduced to the Cuba in another way. The meeting mandated Ambassador Soutar to further investigate the allegation and prepare a report by 31 December 1997.

His report, delivered on 15 December 1997, concluded that ‘due inter alia to the technical complexity of the subject and to passage of time, it has not proved possible to reach a definitive conclusion with regard to the concerns raised by the Government of Cuba’.  Twelve states parties to the BTWC had submitted comments, which were annexed to the report. All agreed that insufficient evidence was available to establish a causal link between the outbreak of Thrips palmi in Cuba in December 1996 and the overflight of the US plane two months earlier. The report noted that throughout the process general agreement existed that the requirements of Article V of the BTWC and the consultative process established by the 3rd Review Conference had ‘been fulfilled in an impartial and transparent manner’.

The interesting thing is that while the BTWC states parties decided to take up the Cuban allegation of entomological warfare, in their conclusions they carefully avoided naming the incident a case of biological warfare. As Nicholas Sims of the London School of Economics and Political Science noted in his SIPRI book The Evolution of Biological Disarmament (Oxford University Press, 2001),

Denmark and the Netherlands expressed doubt, which other parties are known to have shared, over the question of whether insects or other pests such as Thrips palmi fall within the scope of the BTWC. Both states included statements that their participation in the consultative process was without prejudice to their national positions on this question.

Cuba, having raised the matter under the BTWC, made it politically difficult for the United States to invoke a legalistic argument to avoid addressing the concern. The documents of the consultative meetings have not been published—Sims does quote some extracts from them—and there is no indication that the incident was precedent-setting in the minds of the states that participated in the exercise.

So to answer the question whether the BTWC bans the use of insects other than for the delivery of a pathogen or toxin, one can only note equivocalness: not prima facie, but in practice some scope may exist to lodge a complaint about malicious use of insect vectors against agriculture with one of the three BTWC depositary states.

Conclusion

To come back to the Jeffrey Lockwood’s suggestion that not all biological warfare may necessarily be wrong, my answer is unequivocally: WRONG!

International law, in the form of the BTWC, allows no exceptions on the use of pathogens or toxins as weapons of war. There have been and still are important reasons why lethality or other humanitarian considerations were discarded as criteria for defining biological and toxin weapons. Any suggestion to the contrary might open up a loopholes that proponents of so-called non-lethal warfare would be all to happy to exploit today and tomorrow.


Investigation of alleged CW use in Syria: The reports 2013–15

[Cross-posted from The Trench]

Investigations under the UN Secretary-General’s Mechanism

Investigations by the OPCW Fact-Finding MIssion

The Trench blog comments


Syrian soldiers exposed to ‘sarin or a sarin-like substance’

[Cross-posted from The Trench]

In November I presented the main findings of the preliminary Fact-Finding Mission (FFM) report of 29 October. This particular investigation of alleged use by the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) had been requested by Syria. Government officials had transmitted four Notes Verbales alleging  26 chemical weapon (CW) events resulting in 432 casualties. The preliminary report focussed primarily on incidents at Jobar (northeast of Damascus) on 29 August 2014. While the investigators believed that government soldiers had been exposed to an irritant, they could not confirm that the chemical had been used as a weapon. They as good as ruled out chlorine or a neurotoxicant, such as sarin, as the causative agent.

However, the investigative team also looked into five other events reported by the Syrian government: Al-Maliha on 16 April and 11 July 2014, al-Kabbas on 10 September 2014, Nubel and al-Zahraa on 8 January 2015, and Darayya on 15 February 2015.

On 17 December the Technical Secretariat circulated the final report on those allegations by the Syrian government. Whereas the interim report of 29 October comprised 59 pages, the final report almost doubled in size to 106 pages.

The final report repeats the findings about Jobar. With respect to the five other incidents, it reaches similar conclusions. However, as regards Darayya it summarised:

From the results of blood sample analyses, the FFM is of the opinion that there is a high degree of probability that some of those identified as being involved in the alleged incident in Darayya on 15 February 2015 were at some point exposed to sarin or a sarin-like substance. In order to determine how, when, or under what circumstances the exposure occurred, further investigation would be required to complement the interviews carried out and the documents reviewed.

It does not say that those individuals were exposed to the neurotoxicant at Darayya, nor does it confirm that such exposure was the consequence of combat operations.

Investigating possible use of irritant chemicals as a weapon

With regard to the alleged incidents in Jobar on 29 August 2014 (for details, see my earlier posting), al-Maliha on 16 April 2014 and 11 July 2014, al Kabbas, Damascus on 10 September 2014 and Nubel and al-Zahraa on 8 January 2015, the report offers parallel conclusions. These are:

  • The affected soldiers ‘may have been exposed to some type of non-persistent, irritating airborne substance, secondary to the surface impact of the launched objects’.
  • The investigators could not determine with any degree of confidence as to whether exposure was the consequence of the irritant being delivered as the payload of a projectile, or whether the irritant had another source of origin (combustion product of a propellant, detonation of a conventional or improvised explosive device on a stored chemical already in-situ, some combination of substances mixed with surface soil and dust, or a combination of all mentioned factors).
  • The affected soldiers in question present clinical symptoms that are ‘consistent with a brief exposure to any number of chemicals or environmental insults’. Furthermore, ‘the visual and olfactory description of the potential irritating substance does not clearly indicate any specific chemical’.

In each of the five cases, the investigators pointed out that the lack of hard evidence precluded them from gathering facts in a definitive way. Little ‘objective evidence’ was made available to the team to complement the materials given by the Syrian authorities, ‘either because it was unavailable or because it was not generated in the first place’. The report lists the types of evidence that would have been crucial to establishing facts with a higher degree of confidence:

  • Photographic or video recordings of the incident;
  • A visit to the site where the incident took place;
  • Detailed medical records including, inter alia, X-rays, pulmonary function tests, and timely blood laboratory values;
  • Timely biomedical samples from the patients;
  • Remnants of any ordnance, launching system, or other forensic evidence retrieved from the location of the incident;
  • Unfired ordnance similar to that used in the incident;
  • Environmental samples from the surroundings of the location of the incident, including background samples;
  • Comprehensive contemporaneous incident reports generated by the chain of military command and the medical system; and
  • Comprehensive witness testimonies generated at the time of the incident.

Concerning some alleged incidents, the investigators would have also welcomed:

  • A greater sample of witness testimonies (al Maliha, 11 July 2014; Nubel and al-Zahraa, 8 January 2015); and
  • Samples from remnants of cylinders or other containers alleged to have been used in the incident and retrieved from the incident location (al Kabbas, 10 September 2014; Nubel and al-Zahraa, 8 January 2015).

Exposure to a nerve agent-related substance

According to Note Verbale 41 (29 May 2015), a follow-up to the initial document submitted by the Syrian government on 15 December 2014 that led to the FFM investigation, eight military personnel became casualties in an alleged CW incident on 15 February 2015. It provided a brief description of the incident, signs and symptoms, a more precise location, the hospital where casualties received treatment, and the names of the victims. The incident appeared sufficiently grave for the FFM to investigate it.

The FFM conducted interviews with medical staff and casualties relevant to the allegation and visited hospitals and research laboratories where tests on victim blood samples had been conducted. It also visited the Centre for Studies and Scientific Research Institute in Barzi, Damascus, on 12 and 14 August 2015. On the first day, team members had a discussion with the head of the research institute on the storage and research methods for blood collected for acetyl-cholinesterase (AChE) analysis and were made aware of the existence of several blood samples stored onsite related to the Darayya incident. Two days later the FFM revisited the institute to seal the selected blood samples.

In the course of the investigation the FFM received a variety of documents, including battlefield and medical reports, video footage and images from GoogleEarth indicating exact locations. These documents included the medical records of the eight reported casualties and the AChE analyses of six alleged victims. In several cases the investigators were granted access to requested documents, albeit without being provided with photocopies. Four of the reported casualties were given HI-6 (asoxime chloride) and dematropine, both nerve agent antidotes.

The retrieved blood samples were forwarded to OPCW-certified laboratories for analysis and a certified laboratory conducted DNA analysis to link the samples to the casualties.

In its medical review the FFM report draws a sharp distinction with the other investigated Syrian allegations:

The Darayya incident was the only reviewed incident wherein the alleged victims had a prolonged recovery phase of 10-12 days. This departed from all other alleged incidents wherein recovery was rapid and rarely resulted in hospital observation for more than two nights. Darayya is also the only alleged incident wherein antidotes and specific treatments such as oximes and atropine were employed, or were even mentioned. Finally, and perhaps most notably, this was the only incident wherein blood analysis was performed with quantitative results noted in the medical records. Though such results are precisely the type of objective evidence the medical team would have preferred to have had in the aforementioned incidents, in the case of Darayya the presented test results proved more confounding than helpful, as they were significantly outside of the expected range for such a scenario.

As a consequence, the report notes, the recovered blood samples had to be forwarded to an independent laboratory for further assessment. The final results were still pending when the report was issued. In its absence the medical evaluation necessarily rests on the interviews and provided documents, but given the shortcomings of the methodology and gaps, these merely contribute to the uncertainties that permeate the entire report on the allegations by the Syrian authorities. (It should be noted that Appendixes 8 and 9 provide detailed results of the analyses of the blood samples suggesting exposure to neurotoxicants in all tested samples collected from casualties, so that paragraph 90 of the report may either indicate failure to delete language from an earlier draft or point to additional laboratory testing.)

As with the investigation of the other incidents, the FFM noted that the Syrians could have supplied more documentary evidence or undertaken certain actions to  corroborate the testimonies of the casualties and witnesses it interviewed and establish the value of the evidence supplied:

  • Immediate notification to the OPCW that a suspected chemical attack had occurred would have allowed the prompt deployment of the FFM to gather primary evidence and establish the facts surrounding this incident;
  • Photographic or video recordings of the incident;
  • Visit to the site where the incident took place;
  • Detailed medical records including, inter alia, X-rays, pulmonary function tests, as well as timely and complete blood laboratory values;
  • Remnants of any ordnance, launching system, or forensic evidence retrieved from the incident location;
  • Unfired ordnance similar to that used in the incident;
  • Environmental samples, including animal tissue, from the surroundings of the incident location as well as background control samples;
  • Comprehensive contemporaneous incident reports generated by the chain of military command and the medical system;
  • Comprehensive witness testimonies generated at the time of the incident; and
  • A greater sample of witness testimonies.

On the basis of the evidence collected, the FFM concludes that:

there is a high degree of probability that some of those involved in the alleged incident in Darayya on 15 February 2015 were at some point exposed to sarin or a sarin-like substance. However, the FFM could not confidently link the blood sample analyses to this particular incident nor determine how, when, or under what circumstances the exposure occurred.

The one sarin-like substance the report mentions is chlorosarin (O-isopropyl methylphosphonochloridate), a final precursor to the manufacture of sarin. However, the analysis did not indicate a specific date of exposure, nor a specific time that the blood was drawn. The FFM was also unable to verify the chain of custody between the time the blood was drawn from the casualties and the time it sealed the samples. In addition, blood sample analyses indicated that four of the eight individuals were at some point exposed to sarin or a sarin-like substance, but the investigators were unable to link these results to the Darayya incident of 15 February 2015 as reported by the Syrian government. It is in this context that the report observes that the immediate notification to the OPCW of the suspected chemical attack would have allowed the prompt deployment of the FFM to gather primary evidence and establish the facts surrounding this incident.

Some observations

A striking feature of the general debate at the 20th Session of the Conference of States Parties (30 November–4 December 2015) was that not a single country referred to the preliminary FFM report on the allegations put forward by the Syrian government. As one participating diplomat put it to me, conclusions were not yet definite. He added that ‘the Executive Council had kicked the can down the road’ and that the findings would make for a difficult meeting early in 2016. Indeed, a week earlier, on 23 November, the Executive Council had noted the FFM’s inability to confidently determine whether or not a chemical was used as a weapon. It further noted that the FFM report was an interim report and that other incidents under investigation are pending final analysis and will be included in the final report.

The paragraph stands in stark contrast to the previous one addressing the FFM reports on alleged CW use in Marea and Idlib province, where the Executive Council

Expresses grave concern regarding the findings of the Fact-Finding Mission that chemical weapons have once again been used in the Syrian Arab Republic, and in this regard:
(a)     underscores that, with respect to the incident in Marea, Syrian Arab Republic, on 21 August 2015, the report of the Fact-Finding Mission confirmed “with the utmost confidence that at least two people were exposed to sulfur mustard” and that it is “very likely that the effects of sulfur mustard resulted in the death of a baby” (S/1320/2015); and
(b)     further underscores that, with respect to several incidents in the Idlib Governorate of the Syrian Arab Republic between 16 March 2015 and 20 May 2015, the report of the Fact-Finding Mission concluded that they “likely involved the use of one or more toxic chemicals—probably containing the element chlorine—as a weapon” with an “outcome of exposure [that] was fatal in six cases in Sarmin,” including those of three children in the same family (S/1319/2015).

Reading the latter two documents, I was struck by the fact that despite the difficult circumstances in which the investigations had to be conducted, the reports were still able to advance conclusions with fair to very high degrees of confidence that toxic chemicals had been used as a weapon. The investigators also indicated which chemicals may have been involved and proffered details about the munitions that delivered the agents. Indeed, the Idlib report contained a detailed graphical reconstruction of the barrel bombs dropped from helicopters to deliver the chlorine (see my earlier posting). All the evidence collected from Idlib province leaves little doubt that government units were responsible for those attacks. Concerning the mustard agent attack at Marea, the report does not implicate the Syrian government despite the certainty of its conclusions. Press and NGO reports have pointed the finger to the Islamic State of Iraq and the Levant (ISIL). The OPCW and Iraq are collaborating on the investigation into a similar incident implicating ISIL near Mosul last summer.

During the Conference of States Parties the Syrian delegate vehemently denied that his country had ever launched a CW attack. In 2013 Damascus requested the UN Secretary General to investigate certain allegations of chemical warfare; the UN investigative team was in the Syrian capital when sarin-filled rockets hit the Ghouta suburb. The offer to accede to the CWC and have its chemical warfare capacity eliminated under international supervision averted international military strikes and ensured regime survival, at least in the short term.

The request for an investigation submitted in December 2014 was the first since Syria had joined the OPCW. One imagines that the Syrian government would have mobilised all possible resources to substantiate its allegements to the greatest possible extent. Trivial or plainly false allegations would inevitably undermine the country’s standing and the international community will tend to brush off any future accusations as a figment of a desperate government’s imagination.

Investigating false accusations also drains the OPCW’s limited budget resources. Unfortunately, no arms control or disarmament treaty currently in force envisages specific penalties for false allegations. Before entry into force of the CWC the Preparatory Commission (PrepCom) of the OPCW held consultations on the ‘costs of abuse’ detailing what direct and indirect costs should be covered by the State Party requesting a challenge inspection should the Executive Council rule that the requesting state party abused its right to request such an inspection. However, the PrepCom transferred the question as one of the outstanding issues to the OPCW and 18 years after the entry into force of the CWC this particular question remains unresolved. [Per Runn, Verification Annex, Part X, in W. Krutzsch, E. Myjer, and R. Trapp (eds.), The Chemical Weapons Convention: A Commentary (2014), p. 618.] Whichever way, since Syria claims that it cannot pay for verification and other operations for which a state party should cover the costs, the international community must cough up the money.

What Syrian objectives may lie behind the accusations? First, the government may genuinely believe that it has been the victim of chemical attacks. In that case, one would expect government officials forthcoming with evidence. Even lacking experience in dealing with such a situation, the questions and requests for further evidence they could address in such a way that either it complements initial information with supplementary evidence or demonstrates that the desired data are genuinely not available, for instance, as a consequence of war circumstances.

Second, the accusations could be part of a broader scheme to deflect responsibility for the Syrian regime’s own chemical attacks or to deny the international community evidence that later might inculpate Syrian officials for war crimes. If the allegations are indeed part of a plan to deflect responsibility for CW use, an outside observer’s impressions can only vacillate between sloppiness and sheer incompetence, on the one hand, and unwillingness to provide relevant documentation (which many or may not have been deliberately destroyed or hidden), on the other hand. Alas, the latter concern is one I have also often heard mentioned in connection with Syria’s declarations as part of its disarmament obligations.

There is a third possibility, but here one can only hope that the request for an investigation was not part of an exercise to learn how to better disguise chemical warfare attacks or to manufacture evidence in support of alleged insurgent use of toxicants.


Should False Assumptions about Iran´s Nuclear Program be Reviewed by EU Courts?

I’m very pleased to host a guest post by Dr. Katariina Simonen, who is a Senior Researcher on the Faculty of Law at the University of Helsinki (see fuller bio below). Dr. Simonen writes in this post on a very interesting question of European Union law. Hopefully some of our other contributors and readers with a background in EU law can engage with her analysis.

——————————————-

Should False Assumptions about Iran´s Nuclear Program be Reviewed by EU Courts?

By: Katariina Simonen

While reading the recent General Court (EU) Judgment in Case T-564/12, Ministry of Energy of Iran versus the Council of the European Union, regarding the annulment of certain restrictive measures imposed against the applicant, the Finnish version of the Judgment caught my attention since paragraph two of the Judgment speaks of sanctions imposed in order to apply pressure to Iran to end nuclear weapons related proliferation sensitive activities and the development of nuclear weapon delivery systems. This linguistic glitch, which was polished in the English version to cover “proliferation-sensitive nuclear activities” and “the development of nuclear weapon delivery systems”, made me realize that the EU restrictive measures may, in fact, be based to a great extent on the assumption of Iran´s nuclear weapons program and related activities.

However, such an assumption is not correct, at least after 2003. We know this from the IAEA, which, in December 2015, released its report on Past and Present Outstanding Issues regarding Iran´s Nuclear Programme which was followed by the adoption by the Board of Governors of a resolution on 15 December 2015, in which Director General Amano explicitly summarized the main findings of his report:

“The Agency assesses that a range of activities relevant to the development of a nuclear explosive device were conducted in Iran prior to the end of 2003 as a coordinated effort, and some activities took place after 2003.

The Agency also assesses that these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities.

The Agency has no credible indications of activities in Iran relevant to the development of a nuclear explosive device after 2009. Nor has the Agency found any credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear programme.”

The report closes Iran´s PMD file, allowing the JCPOA to go forward. Even so, the IAEA was heavily criticized by specialists for failures to address past allegations and its intelligence gathering proceedings relating to its 2011 report. Robert Kelley has just addressed the issue in LobeLog here, Paul Jenkins here and the IAEA´s former Director General El Baradei here. Also, there is a good article by Pierre Goldschmidt here regarding the IAEA´s lack to address properly Iran´s non-compliance issues.

These references serve to point to my question: if the EU restrictive measures have been imposed explicitly on the factual assumption that a nuclear weapons program exists in Iran, and since we now know from the IAEA that that such assumption is not correct, should not the European Courts acknowledge somehow this fact when reviewing EU restrictive measures against Iran?

I believe the answer is positive. I will address the issue shortly by sketching the outlines for the authority of the EU Judicature so to act.

First, let us remember that there is no automatism in the implementation of diverse UNSC resolutions into the community legal system. Since the seminal Kadi –saga the European Courts have reserved themselves the right of independent legal review of validity of any community measure, and this applies to the UNSC resolutions, too. See Conor Gearty´s recent article on this point here.

In Kadi I (Joined Cases C-402/05 P and C-415/05 P), the European Court of Justice (ECJ) considered that the review of the validity of any Community measure in the light of fundamental rights must be considered to be the expression, in a community based on the rule of law, of a constitutional guarantee stemming from the EC Treaty as an autonomous legal system, which was not to be prejudiced by an international agreement – namely, in the case in question, the Charter of the United Nations (para. 316).  The ECJ issued its judgement in the Grand Chamber formation, with the clear intention of delivering a judgment establishing certain principles.

The ECJ regarded that the General Court´s reasoning in first instance (Case T-306/01 and Case T-315/01) contained an error of law because the General Court had considered that short of extreme situation of a violation of jus cogens, the Security Council could do what it wanted. Already the Advocate General Maduro had disagreed with the General Court dismissing EU´s own human rights and rule-of-law traditions.

And the ECJ agreed with Maduro. It stated clearly that the Community judicature must, in accordance with the powers conferred on it by the EC Treaty, ensure the review, in principle the full review, of the lawfulness of all Community acts in the light of the fundamental rights forming an integral part of the general principles of Community law, including review of Community measures which, like (then)) Regulation No. 881/2002, are designed to give effect to the resolutions adopted by the Security Council under Chapter VII of the Charter of the United Nations (paras. 326-327). This case law was now clear in that European Union measures implementing restrictive measures decided at international level enjoy no immunity from jurisdiction. The same conclusion was confirmed, word for word, in later judgments, see Hassan and AyadiBank Melli (2011). The ECJ annulled the regulation on the basis of violations to Mr. Kadi´s rights of the defence, in particular the right to be heard and the right to effective judicial review (paras. 345-353).

The Kadi –saga did not end there. The annulled regulation was kept in force for three months in which the Council would have to rectify the defaults identified. The removal of control was never considered, and Kadi´s listing was confirmed by a new community regulation on 28 November 2008. A new legal round had to be started by Kadi to get annulled those community measures which implemented his listing  by the UN Sanctions Committee (General Court T-85/09; ECJ Joined Cases C-584/10 P, C-593/10 P and C-595/10 P).

Second, the new round of Kadi judgments makes it even more clear what the European Judicature should pay attention to when evaluating restrictive measures and their compatibility with the EU legal order. The Court´s requirement for full and effective judicial review is tied to Article 47 of the Charter of Fundamental Rights of the European Union, and it requires, inter alia, that the Courts ensure that the measure in question, which affects the person or entity concerned individually, is adopted on a sufficiently solid factual basis (Fulmen and Mahmoudian). The General Court specified in Kadi II that the full judicial review will have to be conducted at the very least, so long as the re-examination procedures operated by the UN Sanctions Committee clearly fail to offer guarantees of effective judicial protection required in European level (paras. 126-127). The call for the full and rigorous judicial review gained more strength from -often- the draconian character of fund freezing measures and the long-lasting effect on fundamental rights of the persons concerned (para. 151).

Having said all this, it has to be also bore in mind that since Kadi I the ECJ has been was careful to underline the primary responsibility of the Security Council for the maintenance of international peace and security and its task to determine what constitutes a threat to international peace and security and to take the necessary measures. But the ECJ has thought it proper to underline, also, that such Security Council work is to be carried out in accordance with the purposes and principles of the United Nations, including respect for human rights.

Third, general legal principles play also a considerable role in the European legal order.  According to the principle of legal certainty, which the European Court of justice has deemed a general principle of European legal order since the 1960s, laws which will have legal effect in the European Union must have a proper legal basis. Hence, it is not at all unusual to contest a legal basis of a community act (e.g. C-370/12 Pringle). Since Kadi, the EU Courts have acknowledged that this can mean also a simultaneous inquiry in the work done by the Security Council, especially when previous defaults have been detected, like in the work of the Sanctions´ Committees. Another principle, which has high relevance for our initial question regarding the eventual review of EU restrictive measures, is the principle of proportionality, which was put into effect, for instance, in Bank Melli (2013). The General Court emphasized that the by virtue of principle of proportionality, which is one of the general principles of EU law, the lawfulness of the prohibition of an economic activity is subject to the condition that the prohibitory measures should be appropriate and necessary in order to achieve the objectives legitimately pursued by the legislation in question. The lack of proportionality was also echoed by the Courts in Kadi, when the Courts paid attention to the totality of consequences for Kadi´s rights ensuing from his initial listing already in 2001.

Thus, the legal basis of community restrictive measures can be contested as part of normal judicial procedure, even if the EU community measures implement previous UNSC resolutions. In the case of Iran, greater vigilance by the EU Courts can be recommended regarding factual assumptions on Iran´s nuclear program, which serve as a basis of EU restrictive measures. The EU Court review should take properly into account the latest IAEA´s findings on Iran and its nuclear activities when considering if there is a sufficiently solid factual basis for sanctioning the person or entity in the first place. Furthermore, if contested restrictive measures include explicit references to highly contested documents, like the IAEA 2011 report, such vigilance is even more imperative from the point of view of legal certainty. It may be that the preceding wrong by Iran is lacking in the light of the IAEA´s December 2015 findings, which means that the alleged legal basis of diverse EU restrictive measures against Iran on non-proliferation grounds may have to be seriously reconsidered.

 

Katariina Simonen, LL.D. in international law, is a Senior Researcher at the Faculty of Law, University of Helsinki and Member of the Pugwash Executive Council. She has held diverse legal positions in the European Union (Court of Justice, European Parliament). She is currently on leave of absence from her position as a Senior Advisor for Research at the Finnish Ministry of Defense, working on her book on just warfare conceptions in 12. Shi´a Islam. Her publications focus on diverse aspects of justice in international law, and her latest monograph is The State versus the Individual. The Unresolved Dilemma of Humanitarian Intervention (Brill 2011).


Rauf and Kelley on the PMD Report and the IAEA Intel Problem

Tariq Rauf and Bob Kelley’s new SIPRI report providing an analysis of the IAEA PMD report is a must read.  The two former IAEA insiders give a rigorous and critical review of the technical findings of the IAEA in both the original 2011 PMD report, and now in the final 2015 PMD report. You won’t find this kind of serious and independent review from the normal DC think tank crowd.

Rauf and Kelley further give some overall critical observations about culture and and administrative paradigm clashes in the IAEA, and then particularly focus on a problem that I and others have pointed to as well over the years – the increased recent reliance by the IAEA secretariat on intelligence information provided to it by third party member states.  Here’s their conclusion and recommendations:

A structural weakness of the IAEA is that there is no transparent process for the supply of intelligence information and confirmation of its authenticity. The usual process is for the Member State(s) to provide the intelligence information either in documentation or electronic form to a special assistant in the Director General’s office and/or to the Deputy Director General for Safeguards, alternatively to give a closed briefing in its embassy/mission. The IAEA then deals with the information as described in an earlier section above. There is no established process to share such information with the accused State or with the BoG. In 1993, however, the IAEA Secretariat was allowed by the US to show classified satellite imagery provided by the US to the Board in a technical briefing. To the authors’ knowledge this modality has not been repeated.
The supply and use of intelligence information is a sensitive yet complex issue as noted in the excerpt from an IAEA BoG Governor cited in an earlier section above. The IAEA cannot serve as a feedback loop to intelligence agencies on the veracity of information provided by them through safeguards inspections and assessments. Nor can or should the IAEA rely on such information without confirming its authenticity. This obviously leaves the IAEA in a difficult position as is clearly evidenced by the Iran PMD file where the Agency seems to have been caught short.
Recommendations
The authors recommend that the BoG put in place a methodology for the acceptance and use of intelligence information drawing from the practices of the Organization for the Prohibition of Chemical Weapons (OPCW) and the Comprehensive Nuclear-Test-Ban Treaty Organization (CTBTO). In these two organizations, allegations of non-compliance can be raised by any State Party which provides its information to the Director General, who in turn shares it with the Executive Council. The Executive Council is convened; the Accuser State puts forward its case on allegations of non-compliance or suspicious activities in another State along with supporting information/evidence. The Accused State has the opportunity to present its defence. Following deliberations, the Executive Council can stop a challenge inspection in the case of the OPCW or authorize an on-site inspection in the case of the CTBTO. Such a practice could serve the IAEA well – the Accuser State to provide information to the IAEA Director General, who then shares it with the BoG, the Board convenes to examine the in formation presented by both the Accuser and Accused States and then to decide on the way forward preferably on the basis of consensus but by a vote if necessary. In fact, the JCPOA contains a somewhat similar provision for the Joint Commission in paragraph 36 on dispute resolution, and as noted previously in 1993, the IAEA Secretariat presented satellite imagery on DPRK from the U.S. to the Board of Governors.
It is essential that the IAEA BoG expeditiously comes up with a mechanism governing the provision and handling of intelligence information to the IAEA Secretariat. There is great potential for misuse of such information and of suborning the independence of the Agency in the absence of such a mechanism, as abundantly demonstrated by the cases of Iraq, Iran and Syria in recent time.
In my view this is first class analysis. Not only clearly identifying an important problem, but also providing an eminently workable solution that is already in practice in similarly situated and mandated arms control organizations.  I truly hope that the IAEA BOG will take heed of this report and institute the changes Rauf and Kelley propose.

Technical and Diplomatic Analysis of the IAEA PMD Report

I wanted to follow up about the new IAEA PMD report by pointing to a couple of very good analytical pieces that have been written about it from, respectively, technical and diplomatic perspectives.  Both are at Lobelog:

Robert Kelley’s technical piece here,

and Peter Jenkins’ diplomatic/political piece here.

I highly recommend both. They are a breath of fresh air compared to most of the think tank commentary going on right now.

I really try to stay away from personally commenting on technical questions that come up in the nuclear nonproliferation area.  I try to be very careful in recognizing that I am simply not qualified to provide my own original analysis on such technical questions.  This is precisely the kind of self-awareness that I don’t see in far too many members of the arms control think tank community who, with either no or thin legal education qualifications, have zero qualms about confidently asserting their own original analysis of legal questions.

In that vein of prudential personal reserve, I will not comment at length about Jeffrey Lewis’ new piece over at Foreign Policy, in which he interprets the IAEA PMD report as having made

a straightforward assertion that Iran attempted to build a nuclear weapon prior to 2003.

But let’s do remember what the report actually concluded:

The Agency assesses that a range of activities relevant to the development of a nuclear explosive device were conducted in Iran prior to the end of 2003 as a coordinated effort, and some activities took place after 2003. The Agency also assesses that these activities did not advance beyond feasibility and scientific studies, and the acquisition of certain relevant technical competences and capabilities. The Agency has no credible indications of activities in Iran relevant to the development of a nuclear explosive device after 2009.

The Agency has found no credible indications of the diversion of nuclear material in connection with the possible military dimensions to Iran’s nuclear programme.

Again, from a non-technical-specialist point of view, it seems to me that Lewis is overstating the case.  I don’t see that the PMD report findings substantiate an assertion that, prior to 2003, Iran was in fact attempting to build a nuclear weapon – as if there was a full blown Iranian Manhattan Project going on.

It seems to me that a more reasonable and responsible interpretation of the technical findings of the PMD report would be that Iran was, prior to that date, engaging in a coordinated effort to gain the technical capability necessary to build a nuclear bomb, should the political decision at some point be made to do so.  Again, the report says that the agency found “no credible indications of the diversion of nuclear material” to this capacity building R&D program.  So they apparently weren’t actually experimenting with nuclear material at any point.  And the report further says that “these activities did not advance beyond feasibility and scientific studies.”  Again, this doesn’t seem to support the identification of an intent to in fact manufacture, or at least attempt to manufacture, a nuclear weapon.  It seems to me that this identification is an unwarranted assumption, in a case where other intentions are just as persuasively indicated.

That’s all I’ll say. Perhaps technical specialist types can chime in in the comments section. I do think, though, that it is important to be as clear as we can be about what the PMD report actually says, and what we should understand about Iran’s past weaponization program. I’ll mostly leave it to the likes of Bob Kelley and other actually qualified people to provide that interpretation.  But Lewis’ assertion struck me as particularly excessive and unsupported by what the report actually says.


The Ethiopian Yearbook of International Law (EtYIL)

We are pleased to share the birth of our new Yearbook.

The Ethiopian Yearbook of International Law (EtYIL) is a peer-reviewed academic journal that publishes scholarly works of the highest standard in the field of international law broadly defined, but with a focus on Ethiopia and the Horn of Africa region. For more information please see http://www.springer.com/series/15093 . The first edition of the EtYIL is due for publication in 2016. It is a pleasure to invite you to submit ideas, abstracts and manuscripts for the 2017 edition of the Yearbook. To do so please contact the Editorial Team at  ethiopianyearbook@gmail.com


Follow

Get every new post delivered to your Inbox.

Join 181 other followers