The Meaning of ‘Emergency Assistance’

[Cross-posted from The Trench]

 

Origins and negotiation of Article VII of the Biological and Toxin Weapons Convention

A new research report

 

Article VII of the Biological and Toxin Weapons Convention (BTWC) belongs to the more obscure provisions. It reads as follows:

Each State Party to this Convention undertakes to provide or support assistance, in accordance with the United Nations Charter, to any Party to the Convention which so requests, if the Security Council decides that such Party has been exposed to danger as a result of violation of the Convention.

Since the treaty’s entry into force in 1975, states parties hardly looked at the one-paragraph article. Up to the 7th Review Conference (2011) the only additional understandings and agreements concerned general implementation procedures and possible roles of appropriate international organisations, including the World Health Organisation (WHO), the World Organisation for Animal Health (OIE) and the Food and Agricultural Organisation (FAO), as well as coordination functions for the United Nations (UN). Attention to the article increased markedly at the 7th Review Conference, a consequence of a heightened perceived worldwide risk from emerging and re-emerging diseases, fears of outbreaks resulting from biosecurity and -safety lapses in high-containment laboratories, concerns about scientific and technological advances in the life sciences that could be misused for hostile purposes, potential terrorist or criminal interest in highly contagious pathogens, and so on. The Ebola outbreak in West Africa between 2013–16 and subsequent evaluation of the international response raised concerns among the BTWC states parties about how the international community might respond to a deliberate disease outbreak, whether as a consequence of an act of war or terrorism.

These trends have led to an affirmation of the humanitarian dimension of Article VII. As Nicholas Sims noted in his study of the treaty’s early functioning (The Diplomacy of Biological Disarmament. 1988, p. 24): ‘Statements made in the UN, with an eye on future references to the negotiating history of the convention, indicate that this article is generally understood to refer to humanitarian, not military, assistance.’ With nothing seemingly contradicting today’s humanitarian imperative, most attention has so far gone to the organisation and coordination of international response to the release of a highly infectious biological weapon (BW).

Questions about triggering Article VII

Much less understood is how Article VII can be activated. There are no procedures; there has not been any determination who should be involved in the process. Which are the (possible) roles for the BTWC Implementation Support Unit (ISU), the treaty’s three depositary states (Russia, United Kingdom and United States), the UN Secretary-General (UNSG), or the UNSC is a question that remains unanswered. It should be added in this context that some actors or available tools are of much more recent origin and were consequently not envisaged during the treaty negotiation. The mandate for the ISU was decided at the 6th Review Conference (2006). The UNSG’s mechanism to investigate allegations of chemical and biological weapons (CBW) use received endorsement from the UNSC and the UN General Assembly (UNGA) in 1988 and has since then been strengthened. Through the review process, BTWC states parties have elaborated a consultative mechanism under Article V to address compliance concerns.

Moreover, given the humanitarian framework guiding today’s debates on implementing Article VII, from the perspective of triggering the provision there are several dissonant elements. The article has its origins in a 1968 working paper by the United Kingdom proposing a separate treaty banning biological warfare. The language underwent several reiterations over the next three years and at one point disappeared entirely from the draft convention, only to resurface in its current formulation just before the conclusion of the negotiations. The different versions of the article left traces from earlier intentions and understandings, meaning that the intent behind certain phrases that may be uncertain or appear confusing today. This is particularly the case for the following:

  • provide or support assistance: what is the nature of the assistance, humanitarian, military, or any other type?
  • in accordance with the United Nations Charter: why does the article include a reference to the UN Charter, particularly since the Charter allows for punitive actions and even resort to military force under Chapter VII? In addition, if the assistance is humanitarian, as assumed today, what prompted the reference to the UN Charter? The word ‘humanitarian’ features only once in the founding text (Chapter I, Article 1, 3); the words ‘aid’ or ‘assistance’ (in the sense of humanitarian or non-military aid) are absent. Furthermore, while the UN’s mandate includes the promotion of arms control and disarmament, nothing in the Charter makes it responsible for monitoring treaty compliance or addressing treaty violations. Besides Article VII, only Articles V and VI refer to the Charter or UNSC. The context concerns the resolution of any problems relating to the BTWC’s objective, way of implementation, or breaches of the convention.
    Article V raises the possibility of organising bi- and multilateral consultations and cooperation ‘through appropriate international procedures within the framework of the United Nations and in accordance with its Charter’ in case direct interaction between the parties concerned is impossible or unproductive. Overall the provision is vague. Review conferences have tried to clarify it, in particular with regard to the convening of a consultative meeting. Article VI grants a state party the right to lodge a complaint with the UNSC if it believes that another state party has breached its treaty obligations. Furthermore, should the UNSC initiate an investigation, all states parties undertake to cooperate with such investigation. However, states parties have not elaborated on the references to the UN Charter and the UNSC. They have also not answered whether there is or should be any linkage between either Articles V or VI and Article VII.
  • if the Security Council decides that such Party has been exposed to danger: why is there a requirement for Security Council action if assistance can be provided under basic humanitarian principles? On what basis will the UNSC make this decision? The Third and Fourth Review Conferences (1991 and 1996) noted under both Articles V and VI the UNSG’s investigative mechanism as endorsed in UNSC Resolution 620 (1988) and UNGA Resolution 45/57 (1990) and ‘to consult, at the request of any State Party, regarding allegations of use or threat of use of bacteriological (biological) or toxin weapons and to cooperate fully with the United Nations Secretary-General in carrying out such investigations’. Later review conferences refer back to this text and have not elaborated any further on the references to the UN Charter or the UNSC. The UNSC, as its name indicates, bears primary responsibility for the maintenance of international peace and security (Chapter V, Article 24, 1). Logic therefore suggests that Article VII applies exclusively to the deliberate use of a pathogen or toxin as a weapon. This would thus exclude a situation of a country facing an outbreak after an accidental release of a disease-causing agent from a neighbour’s secret BW research or production facility (similar to the anthrax outbreak near Sverdlovsk in 1979). In other words, according to this interpretation Article VII refers to an act of war, even though the BTWC lacks references to ‘use’ in both its title and Article I.
  • as a result of violation of the Convention: does this clause imply violation of any part of the BTWC? If affirmative, this could include illicit weapon programmes or outbreaks resulting from illicit activities. How would this square with the interpretation that Article VII only refers to an act of war?
    Furthermore, only states parties can violate the BTWC, which implies that dangers arising from other actors—non-states parties (signatory or non-signatory states) or non-state actors—could not be the subject of Security Council action, and therefore not of state party assistance.

Aim of the research paper

In November 2016, in the margins of the 8th Review Conference of the BTWC, the Fondation pour la recherche stratégique (FRS) and UN Institute for Disarmament Research (UNIDIR) held a tabletop exercise (TTX) to understand better the elements that would have to be in place to trigger Article VII and the consequences such action may have on the organisation of international assistance. The TTX revealed that decision-making was severely hampered because of the article’s lack of clarity, uncertainty about possible procedures and their consequences on the process as a whole, and the types of actors that could be called upon (e.g. UNSG, ISU, depositary states, etc.).

Discussions at a workshop on ‘Article VII of the BWC and the UN System’, held in New York on 12–13 December 2017 as part of the Project on strengthening global mechanisms and capacities for responding to deliberate use of biological agents, also touched upon the specific responsibilities of UN organs following activation of Article VII. The question was raised whether there was any relevancy in trying to recover the negotiators’ original intentions. In reply, UN officials said that since the implications of triggering Article VII had never been studied and no procedures have ever been put in place, following a request the first task for the UN would be to study legal and negotiation documents to determine which types of action might be possible and which roles the UNSC and UNSG might play.

This research paper traces the article’s negotiation history between 1968 and 1971. During those three years negotiations took some sharp turns, and draft treaty texts were dropped and replaced by alternatives that framed BW control in radically different ways. In the final two months of negotiation, some degree of synthesis between different approaches took place. With respect to Article VII, when Morocco introduced an amendment to reinsert language based on the British proposal of August 1971, the context had completely changed, not in the least because the original draft provisions banning methods of biological warfare and a mechanism to investigate allegations of BW use had been dropped. Whereas Article IV in the original British draft convention formed part of the fabric to prevent biological warfare, the later Article VII had no obvious connections to the BTWC’s core prohibitions in Articles I – III. It also lacked direct or explicit links to Articles V and VI.

Moreover, the humanitarian intent, systematically affirmed by British government officials and diplomats, became blurred at times, especially after an addition to a draft UNSC resolution that was to accompany the BTWC made explicit reference to Article 51 of the UN Charter on individual and collective self-defence. It shifted the focus away from aiding the victim of a biological attack to possible assistance in countering the aggressor.

Download the full research report

 

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Novichok between opinion and fact – Part 2: When alternative facts become blatant untruths

[Cross-posted from The Trench]

On 18 April 2018 the Executive Council of the Organisation for the Prohibition of Chemical Weapons (OPCW) held its 59th meeting, which was wholly dedicated to the assassination attempt with a nerve agent of the Novichok family. The Technical Secretariat presented its classified full ‘Report on Activities Carried out in Support of a Request for Technical Assistance by the United Kingdom of Great Britain and Northern Ireland (Technical Assistance Visit TAV/02/18)’. A summary released by the Technical Secretariat on 12 April, although lacking in detail, stated that:

  • Two OPCW designated laboratories confirmed that the three hospitalised individuals had been exposed to a toxic chemical;
  • Another two OPCW designated laboratories confirmed the presence of the toxic chemical in environmental samples;
  • The results confirmed the UK’s findings relating to the identity of the toxic chemical; and
  • The TAV noted the high purity of the agent because of the almost complete absence of impurities.

Russia’s unprecedented revelation of the identity of a designated laboratory in an investigation

Prior to the Executive Council meeting Russia caused an uproar when Foreign Minister Sergei Lavrov publicly identified one of the designated laboratories involved in the analysis of samples (Spiez laboratory, Switzerland). In his address to the Assembly on Foreign and Defence Policy on 14 April, he also confirmed the identification of Substance A-234 (a Novichok agent) and furthermore claimed (from Russian via Google Translate):

Based on the results of the examination, the traces of the toxic chemical BZ and its precursors belonging to the chemical weapons of the second category in accordance with the Convention on the Prohibition of Chemical Weapons are found in the samples. BZ is a nerve agent temporarily disabling a person, psycho-toxic effect is achieved in 30-60 minutes and lasts up to four days.

This recipe was in the arsenal of the US Army, Great Britain and other NATO countries, there were no developments or accumulations of these chemical compounds in the Soviet Union and Russia.

The statement as such contains two errors.

Read the rest of this entry »


What is a chemical weapon? When is chlorine a chemical weapon?

[Cross-posted from The Trench]

 

A recurring question in the context of the investigation by the Organisation for the Prohibition of Chemical Weapons (OPCW) into the use of chlorine in the attack against Douma on 7 April is whether chlorine is actually a chemical weapon (CW).

The simple answer is ‘yes’ if the chemical element is released as method of warfare, an act of terrorism, or any other deliberate act intended to harm or kill a person or animal.

There are two elements in the Chemical Weapons Convention (CWC) to bear in mind, namely the definition of a CW and the three Schedules (or lists with chemicals), which are annexed to the convention.

Definition of a chemical weapon under the CWC

Most toxic chemical are potentially dual-use. Moreover, the CWC wishes to cover not only yesterday’s and today’s toxic chemicals but also the ones that may be developed in the future. To this end, the CWC uses the so-called General Purpose Criterion (GPC): not the toxic chemical as such is prohibited; however, the purposes to which it may be applied are.

In this context it is useful to know that the treaty’s default condition is prohibition. In other words, all usage of toxic chemicals is prohibited unless for purposes that are not-prohibited (note the negative formulation). The CWC considers only four non-prohibited purposes.

Thus Article II, 1 states:

1. “Chemical Weapons” means the following, together or separately:

(a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes; […]

Here one can see that any toxic chemical is defined as a CW, except where intended for purposes not prohibited …, in which case the toxic chemical is by definition not a CW and therefore does not fall under the CWC.

Article II, 2 defines ‘toxic chemical’ as

‘Any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. This includes all such chemicals, regardless of their origin or of their method of production, and regardless of whether they are produced in facilities, in munitions or elsewhere’.

In other words, this definition clearly bears on chlorine.

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Novichok between opinion and fact – Part 1: Deconstruction of the Russian denial

[Cross-posted from The Trench]

Since the assassination attempt on Sergei and Yulia Skripal with a nerve agent now just over one month ago, so much has been written about ‘Novichok’; so much has been opined about what ‘Novichok’ is meant to be (if it exists at all); and so much smoke has been spewed about what the identification of ‘Novichok’ suggests about culprits. This blog posting is the first of several to look into a specific aspect of the discussions concerning Novichok in the hope of clarifying where certain positions come from and what factual knowledge exists about this group of nerve agents.

Facts have been scarce. In fact, as a member of the public with long-time interest in chemical and biological weapons, I know very little about what took place in Salisbury on 4 March. I still have to see the first statement from British authorities—government officials, police, scientists at the Defence Science and Technology Laboratory (DSTL) at Porton Down—in what form the Novichok agent was delivered. Was it a liquid? A solid in powdered form? A binary concoction? Delivered in a gel or ointment? Anything else?

‘Novichok’ as we know the family of nerve agents today was researched, developed, produced and field-tested in sizeable quantities in the Soviet Union and at least during the early years of Russia as an independent state. Little else beyond this basic information given by some of the chemists involved in the armament programme is available. Those researchers are not always in agreement with each other, especially as regards the skill levels required to synthesise the agent.

Meanwhile, government officials from both the United Kingdom and the Russian federation have launched a war of hyperbole. London overstated the nature and quality of evidence from forensic chemistry; Moscow, amid a broad smoke-and-mirrors campaign, used the exaggerations to poke holes in the British narrative. Just like with allegations of chemical weapon (CW) use in Syria, Russia has released a barrage of denials concerning the assassination attempt in the UK through disaffirmation of any involvement, construction of spurious logic and citation of any ‘expert’ willing to entertain conspiracy theories. It furthermore rejects any outcome unfavourable to its world view and questions procedures and methodologies applied by investigative bodies. Moscow, however, never supplies any physical evidence in support of its claims.

Yet, over the din there are two steadfast Russian positions: (1) Russia is not responsible for the Soviet Union’s actions, and (2) CW declarations concern only ‘produced’ toxic chemicals for use in warfare. In the specific context of the CWC, it places the three Schedules central to the prohibitory regime.

Read the rest of this entry »


Geopolitical manoeuvring behind Skripal

[Cross-posted from The Trench]

On 4 April the Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW) will meet in a special session. Russia called the extraordinary meeting. It has been a month now since former Russian spy Sergei Skripal and his daughter Yulia had been exposed to a nerve agent in Salisbury. The United Kingdom (UK) government identified it as a member of the ‘Novichok’ family, once researched and developed by the Soviet Union. Russia is believed to have continued the programme at least during the first years after the breakup of the USSR. It has never come clear on the nature of the programme or identified the agents’ characteristics. As no other country has ever been associated with the Novichok family of agents, London’s finger-pointing at Moscow was not difficult.

War of loud words

Since the assassination attempt a war of loud words has erupted. The UK has continued with its investigation and called in the OPCW’s expertise with a view of validating its analyses of the nerve agent. By the latest indications, the results from the OPCW-certified laboratories will not be available before the middle of this month.

Meanwhile, London also launched a diplomatic offensive to isolate Russia internationally (for an overview, see the dedicated UK government web page), which so far has ended with tit-for-tat expulsions of diplomatic staff. The rhetoric strayed off course. The assassination attempt got linked to similar incidents over the past years and decades, Russia’s actions in its near-abroad and Syria, its cyber campaigns against the institutions of Western democracy, and the country’s more assertive stance against Western interests, particularly those of the European Union (EU) and the North Atlantic Treaty Organisation (NATO). And, of course, the post-penultimate British schoolboy’s meme had to be called forth for domestic consumption: a mention of Nazi Germany.

Battle royale for the internet’s heart and minds

The British government’s (quite necessary) quietness about the investigation, the dearth of factual information beyond some generalities, and the distraction-causing verbal digressions into unrelated issue areas presented Russia with an open playing field. It was an opportunity it could not, and did not ignore.

Beyond the stacks of concealing black smoke and initial ridicule spouted by the government-sponsored international media and its diplomatic representatives to the UK, OPCW and EU, Moscow stayed much more focussed on the Skripal case. It was testing messages fast, discarding the ones failing to gain immediate traction and pursuing those that got picked up. Together, they addressed several issues simultaneously to drown out or cast doubt over any possible counterargument. That Russian officials or media contradicted themselves or seemingly confessed to total ignorance about past chemical warfare programmes did not matter. Speed was of the essence to avoid a coherent ripostes.

So, they challenged the notion that Russia was the sole originator of Novichok agents; they denied that there had ever been a Novichok programme; they suggested that the agent came form the British chemical defence laboratories at Porton Down or from similar facilities in other European countries; they questioned the OPCW’s legitimacy in the investigation while embracing the procedures foreseen in the Chemical Weapons Convention (CWC) to discuss the matter; etc. They upbraided the UK government for not releasing details about the nerve agent while the investigation is going on. And then Foreign Minister Sergei Lavrov proffered motive for the British using a Novichok agent against the Skripal family: covering up difficulties over Brexit.

However ludicrous some of the arguments, Moscow ultimately turned the tables on London. Russia now portrays itself as the victim of the attack because the UK was unable to guarantee the safety and security of its citizens, in addition to which it now refuses Russian consular access to Yulia. And exploiting both British silence on the heart of the matter and the waiting period for the OPCW test results, it called for an special session of the OPCW EC after having publicly released two sets of questions (1st set; 2nd set), some of which it could use to initiate the clarification process under CWC Article IX, 2. Quite a few of these questions Moscow has field-tested via its global megaphone. (A subset of questions Russia addressed to the French government too.)

Will Britain’s hand be forced?

How will the EC meeting tomorrow pan out? Difficult to say, but if the debates over Syria’s chemical weapon (CW) use offer any guidance, then the following broad lines may re-establish themselves: the Western countries will decry the violation of the CWC and seek justice; Russia will play out a geopolitical strategy based on nominal pledges of cooperation to influence the votes of members of the Non-Aligned Movement who are wary of being caught up in a new hegemonic struggle between Moscow and Washington.

Russia has definitely laid the groundwork for triggering Article IX, 2. But will it trigger it tomorrow? This is far from certain. Moscow’s core aim may be to place some of the key questions it has already publicised into the formal record, thereby forcing the UK to respond. Any reluctance or avoidance by London would feed a certain narrative, at least until the OPCW submits its own laboratory findings to the UK. That narrative will anticipate those findings; at a minimum it will place the British government under great pressure to release the analyses to other OPCW members, including Russia. That pressure might also compel the British government to follow OPCW procedures rather than pursuing the case through other diplomatic means, in which case Moscow’s gambit may already be anticipating crucial votes further down that path. (For an overview of the Article IX process, see my earlier blog posting Novichok and the Chemical Weapons Convention.)

Remains one question in all this: Where is Washington? в кармане?


Novichok and the Chemical Weapons Convention

[Cross-posted from The Trench]

Assassinations with nerve agents are rare. Very rare. The reason is simple: other means to eliminate a person are simpler and much more effective. The marginal benefit from using even some of the most toxic substances ever made by man is negligible. What is more, the attempt fails often, as Aum Shinrikyo experienced when trying to take out some of the cult’s enemies with VX before the 1995 sarin attack in the Tokyo underground. Last year’s murder of Kim Jong-nam, half-brother of North-Korean leader Kim Jong-un, also involved VX according to Malaysian authorities. However, the real perpetrator behind the two women who rubbed the substance in his face was quickly identified.

The surprise that the assassination attempt on former Russian spy Sergei Skripal and his daughter Yulia in Salisbury, UK on 4 March involved one of the Novichoks was not little. First, this family of nerve agents is relatively unknown. Outside specialised disarmament and HazMat communities few people would have been aware of its existence. Over 100 chemical structures are believed to belong to it, all related yet different. The group of chemical structures does not figure in the Annex on Chemicals of the Chemical Weapons Convention (CWC).  Second, the substance was produced in any sizeable quantities in only one single country, the Soviet Union. Third, the required precursor chemicals and the pathways to synthesise the final agents are completely obscure to most of the public.

The UK government has formally accused Russia of the assassination attempt and expelled 23 Russian diplomatic personnel. Moscow vehemently denies the accusal and has retaliated by demanding that a similar number of diplomats leave the country. It furthermore denies ever having developed and produced Novichoks. The incident follows an already bitter stand-off between the West and Russia over Syria’s proven chemical weapon (CW) use that blocks effective UN Security Council action and splits the Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW). As the government of Prime Minister Theresa May has formally declared its intention to have the OPCW independently verify its analyses and share it with its international partners, the question is whether and how the international organisation can contribute to resolving the matter.

Ensuring compliance under the CWC

Beyond the CWC’s routine verification process involving declarations, assessments and inspections, Article IX ‘Consultations, Cooperation and Fact-Finding’ foresees procedures to resolve uncertainties about compliance or breaches of the convention. These procedures are consultations, clarification, challenge inspection and investigation of alleged use.

Consultation concerning anomalies

The CWC does not detail what consultations should entail, but views and encourages them together with information exchanges as one of the early (or low-key) diplomatic exchanges among states parties to resolve doubts or ambiguities about compliance.

According to a statement issued by the UK’s Foreign and Commonwealth Office, on 12 March Foreign Secretary Boris Johnson summoned the Russian Ambassador to seek an explanation from the Russian Government. The statement strongly suggests that the step was undertaken under the consultative process foreseen under Article IX. It added that Russia provided no meaningful response.

Summary of the consultation procedure (Slide by JP Zanders)

Clarification of compliance concerns

If in doubt or concerned about compliance, a state party may seek clarification. A state party will address the initial request for clarification to another state party, who must reply within 10 days. Although not stipulated in the convention, a degree of expectation exists that the latter would supply supplementary information (i.e. beyond what is available from, for instance, annual declarations or routine inspections) to address the concern.

In case the reply does not resolve the concern, the requesting state party may call for assistance from the EC, which must use its authority to lend weight to the request, including through forwarding the request within 24 hours. The state party to whom the clarification request is addressed has once again a maximum of 10 days to respond. If the replies still do not satisfy, the requesting state party my next request the EC to obtain further information, in which case it may (not ‘must’) decide to set up a group of experts to examine all available information and reports and submit a factual report. Although the group of experts can draw on previous inspection reports, it is in no position to launch its own inspection procedure.

After either of the two previous steps, the requesting state party may call for a special session of the EC, which then has the decision authority to ‘recommend any measure it deems appropriate to resolve the situation’. Although not stated explicitly in Article IX, those measures would presumably include obtention of further information or persuasion of the targeted state party to resolve the presumed violation in accordance with the CWC. If the requesting state party remains unsatisfied with the response, it may call for a special session of the Conference of States Parties (CSP) 60 days after the submission of the request for clarification to the EC. The CSP is to consider and may take any measure, which, as in the case of the EC, remains unspecified in the convention.

It is important to note that the launch of a clarification procedure does not require the outcome of routine inspections, but inspection reports may trigger additional requests for information. It should also be noted that the procedures described above do not affect the requesting state party’s right to call for a challenge inspection, nor are they affected by the conduct of a challenge inspection.

Summary of the clarification process (Slide by JP Zanders)

Challenge of non-compliance

Challenge inspections are the third tool outlined in CWC Article IX. It consists of a short-notice inspection at any site (irrespective of whether it has been declared or not) in a state party. Once the OPCW has authorised the challenge inspection the targeted state party has no right of refusal, but it can invoke the technique of managed access through which OPCW inspectors may be denied access to certain parts of the site. Managed access cannot be implemented in such a way that inspector access to the site as such is denied. However, irrespective of the outcome of the managed access negotiations between representatives of the challenged stated party and the OPCW inspectors, the latter retain full right to interview any staff member of the site (and thus possibly obtain relevant information about the areas to which they have been denied access).

Although a challenge inspection can be requested at any stage of consultation of clarification processes, the CWC encourages states parties to view the tool as an instrument of last resort.

Summary of the challenge inspection process (Slide by JP Zanders)

Investigation of alleged use

Part XI of the Verification Annex details the process of investigating the alleged use of CW or the alleged use of riot control agents as a method of warfare. In case the alleged use involves a state not party to the CWC, then the Director-General of the OPCW will closely cooperate with the UN Secretary General.

The procedure is applied (and has been further developed) with respect to the many allegations of chemical warfare in Syria. It is less relevant to the Novichok case.

Pathways to resolving the Novichok matter

How the investigation of the Skripal assassination attempt plays out will largely depend on the next key decisions by the UK government. The OPCW experts travel to the UK under Article VIII, 38(e), which qualifies their activity as a ‘Technical Assistance Visit’ to help with the evaluation of an unscheduled chemical (the Novichock agent) is not listed in any of the three schedules in the Annex on Chemicals).  They will likely visit the sites of investigation and collect their own samples (if for no other reason than to validate any laboratory samples they may receive), take all materials and documents related to the forensic investigation back to the Netherlands where the sample will be divided up and sent to two or more designated OPCW laboratories. (The list for 2017 can be consulted here.)

After having received the report, the UK government may opt to pursue the case using its own diplomatic means, possibly together with its allies, or it may decide to invoke one of the procedures outlined above, the most likely one being the clarification process. Given the current level of political rhetoric and the earlier summons of the Russian Ambassador, consultations will have little utility left. To call for a challenge inspection the UK will need to have extraordinarily precise information about the production or storage location (which might be difficult if, for example, forensic analysis points to recent, small-scale synthesis of Novichok or to a chemical structure different from those associated with the Soviet programme).

At present the outcome of any one of the procedures is difficult to foresee. Neither the clarification process nor challenge inspection option have been invoked previously. Moreover, even though the CWC may at first sight seem to suggest a hierarchy among the different procedures in terms of increasing stringency or steps in an escalatory process, each one can be pursued independently. They may also be invoked in succession, or they can run in parallel. One procedure is not necessarily a prerequisite to another one.

Central to the understanding of the procedures is that the OPCW, as an independent international organisation dedicated to overseeing the implementation of the CWC, provides a forum for consultation and cooperation among states parties, also in matters concerning compliance or conflict resolution.


Building A WMD-Free Zone on Existing Treaties and Conventions Syrian CWC-Adherence and Reactions, Especially in Israel

[Cross-posted from The Trench.]

Speaking notes for the side event to the 2017 Preparatory Committee of the Nuclear Non-Proliferation Treaty (NPT), organised by the Geneva Centre for Security Policy (GCSP) and Academic Peace Orchestra Middle East (APOME), Vienna, 8 May 2017.

It builds on and updates an earlier posting of 13 March 2015.

Operation of the CWC in the Middle East

  • As of 1 May 2017, the Chemical Weapons Convention (CWC) comprises 192 states parties. The CWC entered into force 20 years ago, on 29 April 1997. It has the largest number of parties of any weapon control treaty.
  • Four states, including two from the Middle East, are still outside the convention: Egypt, Israel, North Korea and South Sudan. (Israel did sign but not ratify the convention.)
  • Given the armed conflicts in different parts of the Middle East, the Organisation for the Prohibition of Chemical Weapons (OPCW) has intervened in Syria and Libya to secure declared chemical weapons (CW) and have them destroyed in other parties to the CWC so as to prevent their use by any one of the belligerents in either country. The Libyan operation took place in August 2016. It drew on the precedent set by and experience gained from the evacuation of chemicals from Syria.

Situation in Syria

  • Syria acceded to the CWC on 14 September 2013 and formally became a state party on 14 October. This was the outcome of a framework agreement on the elimination of Syria’s chemical warfare capacities between Russia and the United States reached in Geneva on 14 September.
  • Since Syria’s accession to the CWC the OPCW has:
    • verified the destruction of 24 of the 27 CW production and storage facilities. Lack of safe access has prevented inspectors from destroying one final aircraft hangar and confirming the condition of two stationary above-ground facilities.
    • overseen the evacuation and complete destruction of all declared chemical chemicals (precursors to nerve agents and mustard agent) for a total of about 1,300 metric tonnes. It also verified the destruction of declared delivery systems.
  • However, there remain several outstanding issues, including the OPCW’s inability to confirm the destruction of 200 metric tonnes of mustard agent in March 2013 (i.e. about 6 months before Syria’s accession to the CWC), the discovery of nerve agent traces in locations not declared by the Syrian government, and the later discovery of an undeclared ricin production facility.
  • Furthermore, since Syria’s accession there have been multiple incidents involving the use of toxic chemicals as weapons, mostly chlorine. On 4 April an attack with the nerve agent sarin took place against the city of Khan Sheikhoun, the first such use since the sarin strike against Ghouta in August 2013. At the time of writing it is unclear whether the sarin was prepared from undeclared volumes of precursor chemicals or whether Syrian scientists and engineers produced a batch from scratch.
  • The Islamic State in Iraq and the Levant (ISIL) has been responsible for some isolated attacks with chlorine and mustard agent in Syria and Iraq. This has created new challenges for the OPCW in terms of investigating and responding to the alleged events. Indeed, these incidents mostly involved the use by a non-state actor against another non-state actor on the territory of a state party to the CWC that is not under the control of that state party.
  • The Fact-Finding Mission (FFM) of the OPCW has confirmed repeated CW use in Syria. The UN Security Council established the OPCW-UN Joint Investigative Mission (JIM) to attribute responsibility for the chemical attacks. JIM has thus far held the Syrian government responsible for three attacks and ISIL for one. Its investigation is ongoing.

Responses from within the Middle East

  • Iran is a strong backer of the Syrian leader Bashar al-Assad. Having been a victim of chemical warfare during the 1980–88 Iran-Iran war, it strongly condemns chemical warfare. However, it denies the Syrian government’s responsibility for the CW attacks since August 2013 and instead blames insurgent factions. It follows the arguments laid out by Russia (and to a lesser extent by China) and plays an active role in the decision-making processes relating to the technical assessments prepared by the FFM in the Executive Council of the OPCW.
  • Some government officials, politicians or commentators both inside and outside the Middle East have made rather wild allegations (without any factual substantiation of these political statements) that other external parties to the civil war supply belligerents with the materials for chemical warfare. Iran has been named as a supplier of the Syrian government; uncontrolled stockpiles in Libya might be transferred to various belligerents in Syria.
  • Attribution of responsibility for the CW attacks has been accompanied by claims that neighbouring states are responsible for supplying or facilitating the transfer of chemicals and equipment to belligerent factions they support. Since with the exception of Israel all neighbouring states are parties to the CWC, the claims are tantamount to an accusation against such states of a material breach of the convention.
  • The current Israeli government has long maintained that Syria has never given up its entire CW capacity since joining the CWC. The difficulties for the OPCW to close the Syrian disarmament dossier tend to reinforce Israel’s deep-rooted pessimism about the ability of international weapon control treaties to guarantee its national security. Israeli attitudes towards Iran, which include conviction of Tehran’s non-compliance with the CWC, appear to be bolstered by Iran’s on-the-ground military support for Syria and Hezbollah in both Lebanon and Syria and its interventions in the OPCW Executive Council.

Concluding thoughts

  • Over the past two decades the CWC has contributed much to the removal of the spectre of chemical warfare, particularly in the Middle East. Addressing specific challenges in Syria and Libya, the states parties to the convention have demonstrated adaptability, flexibility and willingness to support financially or materially the extraordinary disarmament efforts in the field. As a result, the treaty regime has evolved considerably with respect to meeting challenges unforeseen by the CWC negotiators.
  • However, the unrelenting use of toxic chemicals as a weapon of warfare in Syria fundamentally challenges the CWC’s most basic premise to never under any circumstance use CW. Furthermore, backing of belligerents by outside parties (all of whom have joined the CWC) is increasingly tending towards a violation of the prohibition to never under any circumstances to induce, in any way, anyone to engage in any prohibited activity (Article I ‘General Obligations’).
  • Syria’s inability or unwillingness to resolve all outstanding issues with regard to its CW programmes also challenges the integrity of the CWC and the OPCW’s operational procedures. Factual findings are becoming more and more politicised (often driven by ulterior geopolitical motivations), making consensus-based decision-making increasingly difficult.
  • Since the 2nd World War all major occurrences of chemical warfare (with the exception of US use of herbicides and riot control agents in Indochina in the 1960s and early 1970s) have taken and are taking place in the Middle East. All these instances of CW use in the Middle East involved Arab regimes and have targeted fellow Arabs, Muslims or their own population. None were ever launched against Israel.
  • Compared with the question of regional nuclear disarmament, which directly involves Israel, Arab countries have despite the history of chemical warfare in the region remained remarkable indifferent to the many uses of chemical weapons. For instance, not a single member of the Arab League contributed financially or materially to the disarmament operations in Syria or Libya.