[Cross-posted from The Trench]
In my blog posting of 16 January entitled ‘Palestine: From a “will-be” party to the CWC to a “would-have-been”?’, I described how Palestine submitted its instrument of accession to the Chemical Weapons Convention (CWC) with the UN Secretary-General on 29 December, only to withdraw it on 8 January. Since having achieved the status of ‘UN non-member observer state’ in 2012, Palestine has joined over 50 international agreements, including the Biological and Toxin Weapons Convention, to which it became formally a party on 16 January. The CWC is the only treaty on which it reversed its position.
Retracting an instrument of accession is a highly unusual and the motivation behind the step was unclear. Since the blog posting, still nobody is able to offer even a beginning of an explanation for the step.
A rare step nonetheless
Prof. Masahiko Asada of the Graduate School of Law at Kyoto University responded to the blog posting by pointing out that there are in fact precedents involving the withdrawal of an instrument of ratification before the entry into force of a treaty. He specifically pointed to the 1995 UN Fish Stocks Agreement. Italy and Luxembourg ratified it in 1999 and 2000 respectively. Both countries withdrew their instruments ratification and re-ratified it in 2003 along with other European Union (then still the European Communities) members with declarations.
He also referred me to a publication prepared by the Treaty Section of the UN Office of Legal Affairs, Summary of Practice of the Secretary-General As Depositary of Multilateral Treaties. Section H (p. 47) describes circumstances and gives more examples:
157. A State that had deposited an instrument of ratification or of a similar nature may subsequently decide to withdraw its instrument. The Vienna Conference on the Law of Treaties did not address this question. The practice of the Secretary-General has been to allow such a withdrawal until the entry into force of the treaty, on the understanding that, until that time, States are not definitely bound by the treaty.
158. In some cases, States that had thus withdrawn an instrument subsequently deposited a new instrument, but this time with reservations. In this manner, they were in compliance with the rule according to which reservations must be made at the time of deposit of the instrument (see para. 204). Thus, for example, the Government of Greece, which on 6 December 1950 had deposited an instrument of acceptance of the Convention on the Intergovernmental Maritime Organization of 6 March 1948, withdrew that instrument on 26 March 1952 (before the entry into force of the Convention, which took place on 17 March 1958), but reaccepted the Convention on 31 December 1958, with a reservation. And the Government of Spain, which on 29 July 1958 had deposited an instrument of accession to the Customs Convention on the Temporary Importation for Private Use of Aircraft and Pleasure Boats, and Protocol of Signature, signed at Geneva on 18 May 1956, withdrew the said instrument on 2 October 1958 (before the entry into force of the Convention, which took place on 1 January 1959) and then deposited a new instrument with a reservation.
So, while there have been a few withdrawals of instruments of ratification, countries seem to have taken this step (1) when the treaty had not yet entered into force for anybody; and (2) possibly with the intention to re-ratify at a later stage but with the addition of reservations.
Palestine’s action does not seem to fit this practice.
First, none of the treaties in the examples concern international security or weapon control.
Second, Article XXII of the CWC stipulates that ‘The Articles of this Convention shall not be subject to reservations’. In other words, Palestine cannot retract its instrument of accession with a view of re-submitting it with a reservation. It could, however, express some reservations with respect to the annexes to the CWC provided these are not incompatible with the object and purpose of the convention.
Third, the UN Office of Legal Affairs also noted that ‘the withdrawal of instruments is accepted until the entry into force of the corresponding treaty’ (para. 159). The CWC has now been in force for over 20 years.
The UN Office of Legal Affairs primarily assessed the implications of such withdrawal on when a treaty takes legal effect. It did not delve into the question of withdrawal of accession. Yet, it seems to have left the door open for scenarios involving accession or succession (implying that the treaty would already have entered into force) when it referred to ‘instrument of ratification or of a similar nature‘. However, the lack of concrete examples may suggest that UN Secretary-General Guterres’ acceptance of the Palestinian retraction may yet have set a precedent in international legal history.
Answers? Questions! Questions? Answers!
Literally nobody has an explanation for Palestine’s withdrawal of its instrument of accession or an idea what the Palestinian Authority’s next move might be.
Senior staff within the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) were as confounded as anyone else. This puts to rest my benign suggestion that the OPCW might have alerted the UN Secretary-General to possible complications of Palestine joining the CWC without any formal preparations. No such steps or similar types of communication were undertaken.
Representatives from CWC states parties expressed similar surprise. One rumour circulating in The Hague suggested that Egypt had persuaded the Palestinian Authority in Ramallah to withdraw from the treaty. However, as one ambassador from a Western country told me, ‘this is all what it is, a rumour’. Some persons pointed to the prospect of US financial retaliation (which I explained, but discounted in the original blog posting), but nobody heard an American official even suggest such a possibility.
A former Arab ambassador reached out to colleagues and friends in the Middle East. He replied that nobody was able to provide answers to my questions. Palestinians reached out to the Authority and Palestinian diplomats in disarmament capitals, but again the answer was that ‘no one either knows or wants to talk about it’.
No explanation as to why Palestine withdrew its instrument of accession to the CWC is forthcoming at present. The questions raised in my initial blog posting remain open. Particularly vexing is: why the CWC, and not also one of the 54 other treaties that Palestine has joined over the past three years?
I would like to thank Prof. Masahiko Asada for having pointed me to the broader context of withdrawal of instruments of ratification. My great appreciation also goes to research colleagues and present and former diplomats who brought me in contact with relevant personalities and/or have tried to receive answers from relevant policy makers and implementers.
[Cross-posted from The Trench]
Something really remarkable happened in the first two weeks of 2018. On 2 January, quite out of the blue came the notification by UN Secretary-General António Guterres that the State of Palestine had deposited its instrument of accession to the Chemical Weapons Convention (CWC). It was to become the 193rd state party on 28 January, thirty days after having submitted the document (29 December). Indeed, ‘was’. Guterres formally informed UN members on 11 January that Palestine had withdrawn its instrument of accession three days earlier.
States withdrawing from a disarmament or arms control treaty is extremely rare. But it does happen. North Korea, for example, left the Nuclear Non-Proliferation Treaty (NPT) in 2003. However, I do not recall having come across an instrument of accession being withdrawn after its formal deposit. (Internet searches did not yield any results either, although poor selection of search terms might be responsible for that.) The closest is the ‘unsigning’ of treaties (as the USA did with the Rome Statute of the International Criminal Court). In those cases the agreement had not yet entered into force for the country concerned.
Palestine’s initial action on the CWC did not come in isolation. Today, 16 January 2018, the Implementation Support Unit announced that Palestine had become the 180th state party to the Biological and Toxin Weapons Convention (BTWC).
Out of the blue
I have been expecting Palestine’s accession to the CWC since it attempted to attend 2014 CWC Conference of States Parties (CSP) as a non-State Party observer. I do not recollect similar efforts since then, certainly not at last November’s CSP. The attendance request caused some unease among certain participating states. However, it was denied because the Palestinian delegation had not registered before the formal deadline and the CSP had already formally approved the list of attending observers.
Palestine became eligible to join treaties on 29 November 2012 when the UN General Assembly granted it status of ‘non-member observer state’ (Resolution A/RES/67/19). According to the UN Under-Secretary-General for Legal Affairs, the upgrade from ‘observer entity’ is significant because ‘Palestine may participate in multilateral treaties to which the Secretary-General is the depositary and in international conferences convened under the auspices of the UN that are open to “all States” (the “all States” formula)’. In reality the impact is broader, as is evidenced by Palestine’s accession to the NPT in February 2015 (instrument deposited with Moscow) and the BTWC (deposit with Russia and the United Kingdom). The Holy See is the only other sovereign entity with similar status. It joined the NPT in February 1971, the BTWC in January 2002, and the CWC in June 1999.
Since the upgrade Palestine has gone trough three waves of treaty adhesion: April 2014 (15 documents), December 2014 (18 documents), and December 2017 (22 documents). The treaties in question are listed in annex below. They fall in four major areas, namely diplomatic relations; human, economic and social rights; environmental law; and humanitarian/arms control law.
Of the 22 Palestinian applications in December, the UN Secretary-General issued Depositary Notifications for 19 treaties on 2 and 3 January. The notifications included several weapon control treaties. Only the instrument of accession to the CWC was subsequently withdrawn.
Why the retraction?
Since achieving UN Observer State status in 2012 Palestine has pursued a deliberate policy of becoming a respected member of the international community by unreservedly adhering to international law. In his Master of Laws dissertation entitled Palestine’s Ratification of International Treaties – A Back Door to Independence? (Lund University, 2016), Victor Persson argued that ‘ratifying international treaties strengthens Palestine’s claim for statehood through recognition, which in turn increases pressure for independence on its occupier, Israel’.
However, the latest wave of applications may have been more impulsive than considered. On the day of the deposit of the instruments of accession the Israeli daily Haaretz claimed that US President Donald Trump’s announcement on 6 December to move the US embassy from Tel Aviv to Jerusalem prompted Palestinian President Mahmoud Abbas’ decision. The article further noted that Israel’s ambassador to the UN was holding meetings with his US counterpart to formulate a joint response to the Palestinian move. Meanwhile, the rhetoric between Washington and Ramallah has grown increasingly strident.
Focussing on the escalating conflict, three explanations for the retraction of the instrument of accession seemed possible.
First, the USA (and through it, Israel) exerted great pressure on UN Secretary-General Guterres to force Palestine to reconsider its action. However, while nobody should be surprised about consultations with him, in his role as depositary he is just an executioner. As Article 77 of the Vienna Convention on the Law of Treaties states, one of the functions of a treaty depositary is ‘Receiving any signatures to the treaty and receiving and keeping custody of any instruments, notifications and communications relating to it’. The USA could also have leaned on some of its Arab partners in the region, but given his mood and escalating anger with Washington it appears unlikely that President Abbas would have been persuaded.
Second, as noted earlier, the CWC is the only treaty for which Palestine rescinded its accession. Of all the treaties it applied to join, the CWC is the only one with a dedicated international organisation. (The International Atomic Energy Agency, which supports aspects of NPT implementation, is founded in a different document.) The USA is not loath to exercising the power of the purse to try and compel international organisations to more or less toe its line. For example, in October 2011 the board of UN Educational, Scientific and Cultural Organization (UNESCO) voted to admit Palestine as a state, which prompted Washington to cut in its annual contributions to the organisation. In April 2016 the UN Framework Convention on Climate Change (UNFCCC) accepted the Palestinian Authority as a state party, prompting a group of US Senators to demand that the UN agency be denied any further US funding.
The root of such actions lies in US Federal Law. As explained by the American Center for Law and Justice, US Public Law 101-246 (1990) provides:
No funds authorized to be appropriated by this Act or any other Act shall be available for the United Nations or any specialized agency thereof which accords the Palestine Liberation Organization the same standing as member states.
Moreover, Public Law 103-236, enacted in 1994, prohibits
voluntary or assessed contribution to any affiliated organization of the United Nations which grants full membership as a state to any organization or group that does not have the internationally recognized attributes of statehood.
According to this line of reasoning, pressure would have been exerted on Palestine to rescind its accession because of fears that the OPCW might otherwise lose over 25% of its budget.
This scenario also seems problematic. First, while the UN Secretary-General may be the CWC’s depositary, the OPCW is an independent treaty implementation organisation rather than a specialised UN agency. Second, contrary to UNESCO or UNFCCC, it is not the OPCW that invites in Palestine (or any other entity). A state automatically becomes an OPCW member as soon as the CWC enters into force for it. No single entity—another state party, the OPCW Technical Secretariat, or the UN Secretary-General—can halt or block that dynamic. Third, no US official has hinted in conversations since the Palestinian delegation attempted to officially participate in an OPCW meeting in 2014 that withholding contributions to the annual budget was an option. On the contrary, the USA has too great stakes in the successful global implementation of the CWC.
Avoidance to internationalise the Israeli–Palestinian conflict
Finally, a third possible explanation was suggested by several people from the Middle East whom I contacted: all parties involved tend to avoid internationalising the Israeli–Palestinian conflict.
Palestine’s joining the CWC could indeed have risked the opposite effect because of Israel’s widespread use of riot control agents and other irritants in the occupied territories. Any request to the OPCW to investigate such use would require clarification of the legal status of the occupied territories under international law. Only if Israel exerts full legal jurisdiction over those areas in which it uses riot control agents, it could be argued that such use is domestic and therefore part of legitimate law enforcement. Given Israel’s settlement policies, Palestine will continue to contest Israel’s jurisdiction over large swaths of land. OPCW investigators require authorisation by the state party concerned to access the site of an alleged incident. Israel, of course, is not a party to the CWC and questions would arise whether OPCW personnel can access all parts of the Palestinian territory without requiring transit approval by Israeli authorities (see also below). In addition, given the rawness of international feeling about the Israeli–Palestinian conflict, political and ideological divisions similar to the ones exposed by the debates on Syria’s CW use might split decision-making in the OPCW even further.
This hypothesis leaves open who might be the instigator of the pressure to have Palestine withdraw its instrument of accession and which diplomatic channels might have been used. It also ignores the various options—many of which could and would be devised within the treaty framework once issues are formally raised—available under the CWC to address any specific threats posed by CW to a state party. Indeed, similar legal and political questions have already been considered in connection with Palestine’s accession in January 2015 to the Rome Statute founding the International Criminal Court (ICC). Even while some key players are not party to the Statute, Beti Hohler concluded her analysis of Palestinian accession as follows:
By assessing admissibility of a case, the ICC would effectively be called to assess Israel’s justice system and its capability to genuinely deal with war crimes allegations. Whilst the actual determination would be made on the basis of a specific case and the individual concerned, it cannot be overlooked that Israel in general has a well functioning legal system headed by a respected supreme court.
What is then the likelihood of an intervention by the ICC following Palestine’s accession? Besides the aforementioned legal issues, policy and political realities should also be considered. The reality is that the ICC is heavily dependent on the support of its states parties, including for any type of enforcement as well as for actually ensuring the attendance of suspected perpetrators at The Hague.
In conclusion, the impact of Palestine’s accession to the ICC and what will be its political implications for the Middle East peace process remains to be seen. There are at the moment far more questions than there are clear-cut answers.
One thing however is certain: with Palestine’s accession to the Statute, the legal framework has changed and the parties to the conflict would be wise to accept and respect that.
A more benign explanation for the retraction of accession?
Did you know that the CWC contains 42 instances of situations that will legally affect states parties or require actions that they must complete within 30 days? One example is that the treaty enters into force for a new state party 30 days after the deposit of the instrument of ratification or accession (Article XXI, 2). Another one is that a new state party must submit a series of detailed declarations not later than 30 days after the CWC enters into force for it.
Given that President Abbas seems to have decided to take action on accession in retaliation for the announced move of the US embassy to Jerusalem, did the Palestinian government fully appreciate the level of preparations joining the CWC requires? The country may lie in an active conflict zone, but it is hardly a Syria that would justify consideration of exceptional measures.
Other countries with internal or cross-border conflicts have become member of the OPCW. However, the process takes time. It often involves regional organisations and other states parties facilitating or supporting interactions, providing concrete assistance with legal and practical preparations, teaching and training officials as well as reaching out to key stakeholder communities (including parliamentarians, industry, academia, or any other constituency whose activities could be affected by the treaty) to build political support and capacity. Expert staff from the OPCW Technical Secretariat may already be involved in the concrete preparations to meet the treaty requirements within the set deadlines well before a state becomes a party. In fact, the deposit of the instrument of accession may be timed in function of milestones achieved.
Palestine would face an additional major legal and practical problem: how and where would inspectors enter or exit its territory? First, the Palestinian territories are non-contiguous. Second, the Palestinian Authority does not control all of the Palestinian territory, which means that it would have to special arrangements with Hamas who controls the Gaza strip. However, while a border crossing with Jordan could conceivably be designated as the CWC-required Point of Entry/Point of Exit (Verification Annex, Part I ‘Definitions’, para. 24), the Gaza strip is completely surrounded by Egypt and Israel, two non-states parties. Reaching it over land from the West Bank, by air or via a sea port would likely involve Israel one way or another.
So, a benign explanation might hold that the OPCW alerted the UN Secretary-General or regional states parties to the host of practical problems the unexpected application would pose for Palestine.
Perhaps persuasion might not have been all that difficult. In the afore-cited dissertation, Victor Persson points to the possible role of another significant domestic factor in the process:
due to the current suspension of the parliament, Palestine must choose either to postpone the implementation process or implement the treaties by presidential decree. Postponing the implementation would raise doubts on Palestine’s commitment to follow its new international obligations. Implementing international law by presidential decree on the other hand is an undemocratic legislative procedure.
That dilemma does not even begin to address the complexity of CWC implementation.
At present it is not at all clear why Palestine retracted its accession to the CWC. The immediate explanations—different types of diplomatic pressure by different actors or prevention of internationalising the conflict with Israel—do not answer why the CWC is the only one out of more than 50 treaties that suffered this fate. The observation that the convention is the only international agreement to be served by its own international organisation offers few grounds to assume that the OPCW would be exposed to financial coercion.
An alternative explanation is that the Palestinian authorities have withdrawn the instrument of accession after having been informed of the complex ramifications of becoming a party to the CWC. The impulsiveness of the initial decision in the wake of the US announcement to move the embassy to Jerusalem seems to support this hypothesis. However, this line of thought still requires confirmation on the ground, whether in the Middle East, New York or The Hague.
Annex: Palestine’s waves of treaty adhesion
The first wave (April 2014)
- Vienna Convention on Consular Services
- Vienna Convention on Diplomatic Relations
- The Vienna Convention on the Law of Treaties
- Convention on the Elimination of All Forms of Discrimination against Women
- Convention on the Rights of the Child and the Optional Protocol to the Convention on the Rights of the Child (on the involvement of children in armed conflict)
- Convention on the Rights of Persons with Disabilities
- International Convention on the Elimination of All Forms of Racial Discrimination
- International Convention on the Suppression and Punishment of the Crime of Apartheid
- International Covenant on Civil and Political Rights
- International Covenant on Economic, Social and Cultural Rights
- UN Convention against Corruption
- Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment
- Convention on the Prevention and Punishment of the Crime of Genocide
- Geneva Conventions of 12 August 1949 and Additional Protocols
- Hague Convention (IV) respecting the Laws and Customs of War on Land and its annex: Regulations Concerning the Laws and Customs of War on Land
The second wave (December 2014)
- Convention on the Political Rights of Women
- Convention on the Recognition and Enforcement of Foreign Arbitral Awards
- Basel Convention on the Control of Transboundary Movements of Hazardous Wastes and their Disposal
- Convention on Biological Diversity and the Cartagena Protocol on Biosafety to the Convention on Biological Diversity
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II)
- Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Adoption of an Additional Distinctive Emblem (Protocol III)
- Convention on the Law of the Non-Navigational Uses of International Watercourses
- Convention on the Prevention and Punishment of Crimes against Internationally Protected Persons, including Diplomatic Agents
- United Nations Convention against Transnational Organized Crime
- Convention on the Safety of United Nations and Associated Personnel and the Optional Protocol to the Convention on the Safety of United Nations and Associated Personnel
- United Nations Convention on the Law of the Sea
- Convention on the Non-Applicability of Statutory Limitations to War Crimes and Crimes against Humanity
- Agreement on the Privileges and Immunities of the International Criminal Court
- Rome Statute of the International Criminal Court
- Declaration in accordance with the Rome Statute of the International Criminal Court
- The Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons
- The Treaty on the Non-Proliferation of Nuclear Weapons
- Convention on Cluster Munitions
The third wave (December 2017)
- International Convention for the Suppression of Acts of Nuclear Terrorism
- Convention on the Physical Protection of Nuclear Material
- Rotterdam Convention on the Prior Informed Consent Procedure for Certain Hazardous Chemicals and Pesticides International Trade
- Stockholm Convention on Persistent Organic Pollutants
- The Convention for the Protection of the Mediterranean Sea Against Pollution
- The Convention on the Prohibition of Military or Any Modification Techniques (Environmental Modification Convention or ENMOD)
- Optional Protocol to the Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment
- Chemical Weapons Convention
- Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol)
- Biological and Toxin Weapons Convention
- Anti-Personnel Mine Ban Convention
- Remnants of War additional protocol one (CCW APV 2006)
- Arms Trade treaty
- United Nations Convention on Contracts for the International Sale of Goods
- Single Convention on Narcotic Drugs of 1961 as amended by the 1972 Protocol
- Convention on Psychotropic Substances of 1971
- United Nations Convention against Illicit Traffic in Narcotic Drugs and Psychotropic Substances of 1988
- United Nations Convention to Combat Desertification
- The Convention on International Transport of Goods Under Cover of TIR Carnets
- Protocol on the Sale of Children, Child Prostitution and Child Pornography
- Protocol to Prevent, Suppress and Punish Trafficking in Persons, Especially Women and Children, supplementing the United Nations Convention against Transnational Organized Crime
- The Amendment to article 8 of the Rome Statute of the International Criminal Court
(As an aside, the Treaty on the Prohibition of Nuclear Weapons intriguingly does not figure in the latter list, even though Palestine signed it when it was opened for signature on 20 September 2017.)
Building A WMD-Free Zone on Existing Treaties and Conventions Syrian CWC-Adherence and Reactions, Especially in IsraelPosted: May 8, 2017
[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.
- 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.
[Cross-posted from The Trench]
The Organisation for the Prohibition of Chemical Weapons (OPCW) has just announced the accession of Angola to the Chemical Weapons Convention (CWC). The country deposited its instrument of accession with the UN Secretary-General on 16 September, which means that it will become a party to the CWC 30 days later, that is, 16 October.
Angola will thus be the 192nd state to join the OPCW. No other treaty limiting possession or use of a particular type of weaponry can boast that many parties. The Non-Proliferation Treaty (NPT) has 191; the Biological and Toxin Weapons Convention (BTWC) 173.
Middle East – The hard nut
According to the OPCW statement, only four states now remain outside the treaty: Egypt, Israel, North Korea and South Sudan.
North Korea presents the simplest problem. There is no diplomatic interaction at all, so expectations that Pyongyang will join the CWC any time soon are as good as zero.
Some optimism exists about South Sudan. Efforts are underway to secure succession (Sudan has been a party since June 1999) as part of a broader package that includes offers of assistance to rebuild the war-torn state. Having said that, the date of OPCW membership keeps getting pushed back into a less definite future in parallel with the floundering efforts to bring peace to the country.
Egypt remains of course obsessed by Israel’s nuclear weapons, while Israel continues to fail to see any benefits in collective security in its pursuit of a peace-first policy in a region that seems to be descending ever further into violence and instability. The fact of the matter is that neither country would lose an iota of national security by joining the CWC; quite on the contrary. Symbolism can be a powerful demotivator …
And what about Palestine?
Among the NPT’s membership is the State of Palestine, which acceded to the treaty as the 191st party in February 2015. It deposited its instrument of accession in London and Moscow (but not Washington). On 10 September the UN General Assembly voted to fly the Palestinian flag outside the UN building—together with that of another non-member observer state maintaining a permanent observer mission at the UN Headquarters, the Holy See.
OPCW statements do not list this Palestine in its statements on universality. It should be noted that UN membership is not a precondition for becoming a party to the CWC. Article XX speaks about accession of ‘any state’; Article XXIII designates the UN Secretary-General as depository and provides no grounds for rejecting any state. The Vatican joined the CWC in June 1999.
As far as I know, Palestinian authorities have not made any statements about acceding to the CWC. It may be that some low-level contacts are taking place between the OPCW and the Palestinian Mission to the EU in Brussels, but if this is the case, it is definitely not yet causing any ripples.
Is there an abundance of caution as a consequence of US laws that defund UN agencies that accept Palestine as a full member, thereby seemingly legitimising its quest for full statehood? While it is true the the USA is the single biggest contributor to the OPCW budget, reality is that (1) the OPCW is not a UN agency, and (2) as noted above, the CWC is not an invitation-only club. Unlike, for example, the UN Educational, Scientific and Cultural Organization (UNESCO), OPCW members do not get to vote on the accession of another state.
So, for the OPCW, four or five more countries before full universality, that’s the question!
Using the Momentum of Syria’s Chemical Weapons Dismantlement and Identifying Spill-Over Potentials
Discussion note prepared for: Academic Peace Orchestra – Middle East (APOME), Tackling the Middle East WMD/DVs Arsenals in the Context of Military Asymmetries Towards Zonal Disarmament, Berlin, 11–12 March 2015
[Cross-posted from The Trench]
- Syria acceded to the Chemical Weapons Convention (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. This accord averted military strikes by France, the United Kingdom and the United States as reprisal for the use of chemical weapons (CW) in the Syrian civil war. In particular the attacks against the Damascus suburb of Ghouta on 21 August represented a major escalation in the conflict. The sarin nerve agent killed hundreds of people and injured many more. At the time of the attacks a UN team comprising experts from the Organisation for the Prohibition of Chemical Weapons (OPCW) and the World Health Organisation (WHO) were in Damascus in response to an earlier request by the Syrian government to investigate alleged CW use during the spring of 2013. After modification of its mandate, it investigated the Ghouta attacks and issued their preliminary report on 16 September, two days after the Geneva accord. The findings all but blamed the Syrian government. The team submitted its final report covering all chemical warfare allegations from the original mandate as well as some additional attacks after the Ghouta incident on 12 December.
- After becoming a party to the CWC the verification activities have consisted of four types of activities:
- Syrian declarations on CW holdings, CW-relevant infrastructure (production and storage sites), and on the history of its chemical warfare programme since 1 January 1946. Given the special circumstances that have led the country to accede to the convention, Syria was requested and has (or is in the process of ) providing information on the destruction of CW before becoming a CWC party. As illustrated by the cases of France and Iran, a state party is not normally required to declare this type of information. However, in order to ensure that Syria is not hiding secret stashes of CW, the requested data contribute to establishing a baseline for its past capacities.
- The OPCW verifies those declarations, resolves anomalies and where required requests amendments to those declarations.
- The OPCW conducted inspections at the declared production and storage sites. It oversaw the removal of chemical warfare and precursor agents from Syrian territory and the destruction of delivery means, relevant equipment and installations, and precursor chemicals. It also oversaw the hydrolysis of mustard agent and the neutralisation of a range of precursor chemicals aboard the US vessel Cape Ray in the Mediterranean and the destruction of the resulting effluents in incinerators in Finland, Germany, the United Kingdom and the United States. At present the OPCW is also overseeing the destruction of the former Syrian CW production facilities. To date, two out of twelve buildings have been destroyed and completion of this task is envisaged for this summer.
- The OPCW carried out field investigations into the alleged use of chlorine during the spring and summer of 2014.
- This background note discusses some unique features of the disarmament regime for Syria and their potential relevancy for the Middle East Zone free from non-conventional weapons.
Adaptation to specific circumstances
- Nobody anticipated that the OPCW would ever have to evacuate CW from a state party under conditions of war. Such a situation never occurred before. Even the disarmament of Iraq during the 1990s took place after a cease-fire agreement, endorsed by the UN Security Council Resolution 687 (1991). Syria joined the CWC as a CW possessor state, which was also a first after the treaty-defined destruction deadlines had expired. As a consequence, the responsibility to determine Syria’s interim and final destruction deadlines fell to the Executive Council. Its decision of 27 September 2013 was an adaptation of the US-Russian framework agreement. That same night the UN Security Council endorsed the decision in Resolution 2118 (2013). However, given the virtual impossibility to destroy the CW inside a country at war and the extremely tight deadline to complete destruction operations, the EC adopted several exceptional measures in a second decision of 15 November, none of which are precedent-setting.
- A first major departure from the standard CWC process concerns the initial declaration. Under Article III this document is due within 30 days after the convention enters into force for a state party and establishes a baseline for the country’s status as CW possessor, plans for the destruction of CW and related installations if so required, a description of any CW-related activities after 1 January 1945, the types of chemical facilities on its territory and the types and quantities of treaty-relevant chemicals they produce. Following that submission OPCW inspectors will verify the accuracy of the initial declaration, upon which the state party can submit amendments if so required. In practice OPCW staff will assist a country preparing to join the CWC with compiling the initial declaration and other measures to be undertaken (e.g., national legislation). In the case of Syria inspectors entered the country even before it had formally become a state party (i.e., 30 days after accession) and such an initial declaration was submitted. The Syrian government had agreed to the accelerated pace. While it enabled the OPCW to quickly secure key CW sites that were accessible (some were in combat zones or under the control of insurgents), prepare inventories and render the delivery systems and special equipment useless, it also created a situation in which the OPCW received a lot of information piecemeal. Combined with the chaos of war, Syrian claims of poor bureaucratic administration of the chemical programmes and quite possibly reluctance to cooperate in full, this led to quite a few corrections of the initial declaration and submission of fresh data. Within the Technical Secretariat a small Declaration Assessment Team was set up to raise questions based on the initial declaration, to identify the gaps, find discrepancies, and so on, in order to correct the declaration. In this way, the OPCW has been able and is still continuing to develop the full picture of Syria’s past CW capacities and programmes.
- Under the terms of Article IV of the CWC, each state party remains the owner of the CW thatmust be destroyed, destroys those CW on its own territory, and pays for the destruction operations and the OPCW verification activities.Given the inability to destroy the CW inside a country at war and the extremely tight deadline to complete destruction operations, the EC adopted several exceptional measures, none of which are precedent-setting:
- With the exception of one precursor chemical that had to be destroyed in-country, all warfare agents and other precursors were evacuated by sea from Syria.
- Once they had left the territory, the international community as represented by the OPCW assumed responsibility for the toxic substances. The legal status of the weapons outside of Syria, and therefore the liability in case of a mishap, was never precisely determined.
- The toxic substances were neutralised or hydrolysed aboard the specially adapted US vessel Cape Ray in the Mediterranean, and then transferred to commercial incinerators in Finland, the United Kingdom and the United States and a dedicated CW destruction facility in Germany.
- Both the UN and the OPCW set up special trust funds to finance the operation as Syria claimed to be unable to pay for the destruction and verification costs. Many countries offered funds or contributed in kind.
- The Executive Council vested the OPCW Director-General with the authority to launch a procedure similar in purpose to the challenge inspection, but without many of the procedural formalities detailed in the in the CWC. His decision was to follow a request by a state party and a personal judgement as to the seriousness of the allegation based on information supplied by the requesting state party. He could redirect inspectors working in Syria to the designated site of alleged treaty violation. Despite the difficulties in implementing the decisions regarding the CW disarmament in Syria and the many accusations of procrastination and incomplete declarations, nobody has so far requested such a special inspection.
- For the time being Syria remains under a special disarmament regime and it may still take one or two years, depending on the level of cooperation from Damascus, before the country can become a ‘normal’ state party. Nobody can presently affirm the way in which the transition to normalcy will take place, but the assumption is that both the Executive Council and the UN Security Council will have to take decisions to that effect.
- OPCW decisions were endorsed by the UN Security Council, which had also insisted on a role for the UN. (The OPCW is not one of the UN organisations.) In order to coordinate negotiations and assess various risk factors related to the inspections, preparation of transportation and the movement of the chemical substances across Syria to the northern port of Latakia, the OPCW-UN Joint Mission was established. (It completed its mandate on 30 September 2014.) Its head reported to both the OPCW and the UN Security Council.
The emerging challenge of opportunistic use of toxic industrial chemicals
- Opportunistic use of toxic industrial chemicals occurs when a particular entity resorts to a mode of chemical warfare using toxic chemicals that are readily available at a chemical plant or storage site, but does not undertake steps to develop and produce such weapons. The types of agent thus used can range from extremely common chemical substances, such as chlorine (often used in liquid form for water purification), to compounds such as insecticides and pesticides that, just like sarin or VX, belong to the family organophosphates. A typical characteristic of opportunistic use of toxic chemicals is that the attacks cease as soon as stores have been depleted or access to other sources of supply cut off. Delivery is extremely crude, but some indicators suggest a development process for dissemination devices may take place to enhance the impact of the attacks.
- Through the spring and summer of 2014 there were several reports of chlorine strikes in Syria. Barrel bombs filled with liquid chlorine were dropped on villages from helicopters, strongly suggesting that government forces were responsible for them. As chlorine (or any other toxic chemical) falls under the General Purpose Criterion (GPC) of the CWC, any use as a method of warfare is prohibited. With Syria a state party to the CWC, the OPCW launched an investigation of alleged use. The fact-finding mission arrived in Damascus on 3 May, five days after its creation by the OPCW Director-General. During an onsite investigation on 27 May the team’s vehicle convoy was hit by an explosive device and came under fire. While this part of the mission had to be discontinued, the investigators were able to collate considerable data by means of other techniques, including victim and witness interviews, analysis of medical records and discussions with medical staff, and the analysis of flight paths of helicopters and correlating them to the precise time and site of the barrel bomb attack. It presented three reports in June, September and December 2014. On 4 February 2015 the OPCW Executive Council’s decision formally determined that chlorine had been used as a method of warfare and condemned the acts as a major breach of the CWC. Even though the conclusion did not identify the culprit, it is clear that as a state party Syria bears responsibility for preventing any violation on its territory.
- Other allegations of opportunistic use of toxic chemicals attributing responsibility to the Islamic State in Iraq and the Levant (ISIL) emerged during the second half of 2014. One such claim related to the intense fighting at Avdiko village, 12 km east of Kobani in northern Syria; the other incidents came from Iraq. These occurrences pose a special problem under the CWC. While a state party is responsible for the implementation of the CWC on its territory, the reported events took place in areas not under the control by the government. Moreover the way the alleged use was described in Avdiko, both the perpetrator and the victims were non-state actors, a situation that may potentially create a legal and practical vacuum. Under the terms of the CWC (Verification Annex, Part XI, §27), if use has been alleged on territory not under the control by the government of a state party, then the UN Secretary-General’s mechanism will apply. However, in view of the attacks on the OPCW investigative team in May 2014 and the reliance on the Syrian military for the security and safety of UN and OPCW personnel inside Syria, the question arises how a UN investigation would be able to access an area of intense fighting in which the government military play no role. Thus far no concrete ideas suggestion an international military force to be inserted into a UN member state for the sole purpose of protecting an investigative team have been put forward.
- The arrangements made to enable the CW elimination in Syria are not precedent-setting. However, the whole process has demonstrated a willingness by the OPCW members to approach difficult and exceptional circumstances in a practical way and they have taken several decisions that deviated significantly from the letter of the CWC. This leads to a cautious optimism that if the international community were to request specific types of assistance in support of a nascent zone free of non-conventional weapons in the Middle East, the OPCW might agree.
- However, any such optimism would dissipate fast if there were no serious indications that the two countries not yet party to the CWC—Egypt and Israel—were to show no inclination of acceding or ratifying the convention. After all, in Syria’s case inventiveness was also stimulated by the fact that on the same day Russia and the United States announced their joint framework agreement, Damascus deposited its instrument of accession with the UN Secretary-General and agreed to collaborating with the Technical Secretariat of the OPCW even before the treaty became legally binding on it. This fact alone already deviated from the standard process as foreseen in the CWC.
- If Egypt and Israel were to embark on a range of CBM-types of activities to enhance transparency with regard to past and present CW activities and issues of concern, then the OPCW might be open to assist the process in a discrete fashion.
- Particularly in view of the many emotional reactions to events in the Middle East, any scenario of OPCW involvement would require strong common purpose between Russia and the US, and at least tacit endorsement of their initiatives by the other P-5 members.
- Other than that, the Syrian CW disarmament effort may well remain a truly exceptional case of international collaboration under exceptional circumstances with little bearing on other situations in the Middle East.
- With ISIL moving into Egypt, a scenario of opportunistic use of toxic chemicals in that country cannot be wholly discounted. By staying outside of the CWC, Cairo denies itself certain international tools of assistance and cooperation that could help to counter the threat or mitigate the consequences of such an attack.
[Cross-posted from The Trench]
On 4 December I addressed a workshop on Nuclear Safety, Security and WMD Non-proliferation. The event was organised by Atomic Reporters and the Vienna Center for Disarmament and Non-Proliferation (VCDNP), together with the Stanley Foundation and the James Martin Center for Nonproliferation Studies (CNS). The target audience consisted of more than 20 journalists from or working in the Middle East.
My presentation ‘Responding to chemical weapon use in Syria’ addressed the allegations of chemical weapon (CW) use in Syria since early 2013 and the international CW disarmament operation over the past 15 months.
The audience’s reactions at times illustrated how sensitive the question of CW remains in the Middle East. When people are forced outside their comfort zone offered by established reference frameworks, regional security discussions quickly become tense. If ever serious progress is to be made on the idea of a zone free of non-conventional weapons in the Middle East, preparing a common reference framework for the participants in the debates—particularly civil society constituencies who must prepare the ground to make proposed solutions politically and socially acceptable—will be an unescapable task.
Lale Kemal, a Turkish journalist, captured the exchanges very well in a piece for the Daily Zaman on 8 December. If she leaves you with the impression that the discussions were not just intense, but also most stimulating, then I can confirm they were.
Middle East’s ‘unique’ status on chemical weapons
A colleague from a Middle Eastern country reacted sharply when a speaker in a recent workshop in Vienna used the term “Muslims” in some of his references to the countries in the region during his presentation on the issue of chemical weapons. The colleague urged him to use the names of the countries instead of generalizing them with their affiliation to Islam. The topic of chemical weapons is a sensitive one. Jean Pascal Zanders, director of The Trench — a website specializing in reporting on chemical weapons — told the workshop audience in Vienna that with the exception of the First Indochina War, all cases of major chemical warfare after World War II have taken place in the Middle East.
Yet this journalist’s reaction to the speaker in his usage of the term “Muslims” does not change the reality that — in the words of Mehmet Dönmez, head of Turkey’s Religious Affairs Directorate — around 900 Muslims per day are killed by fellow Muslims around the world, including in the Middle East. Nevertheless, the topic of the workshop for journalists from the Middle East, held in Vienna between Dec. 3-5, was on nuclear safety, security and WMD non-proliferation. WMD is short for “weapons of mass destruction,” which are chemical, biological and nuclear weapons — the deadliest weapons that have so far been developed by humankind.
The workshop was sponsored by the United Arab Emirates (UAE), along with nongovernmental organizations the James Martin Center for Nonproliferation Studies (CNS), the US-based Stanley Foundation and Vienna-based Atomic Reporters. The event was hosted by the Vienna Center for Disarmament and Non-Proliferation (VCDNP). It was a follow-up to the first workshop, which was held in I.stanbul in June of this year in cooperation with I.stanbul’s Okan University.
Going back to the topic of chemical weapons in the Middle East, Zanders from The Trench cited the known incidents of the usage of chemical weapons in the region, including Egypt during its war with Yemen in the 1950s and Iraq against Iran in 1984 during the long-lasting war between the two countries in the 1980s, as well as Iraq’s use of mustard gas against its own Kurds. Syria lately staged a sarin gas attack against its own citizens in Ghouta, near Damascus. Syria’s chemical weapons were destroyed under a deal it struck with some world powers, yet it is unclear whether the country is still hiding some of its chemical weapons stockpile.
Meanwhile, Israel is the only country in the Middle East widely known to possess nuclear weapons, even if it neither denies nor confirms their existence. Iran is accused by the international community of seeking to develop nuclear weapons under the guise of developing nuclear energy power plants.
Dr. Chen Kane from the CNS strengthened Zanders’ assertion, saying during the workshop that, concerning cases of the usage of chemical weapons as well as their possession, the region is unique. According to her, in the Middle East, all three categories of weapons of mass destruction — chemical, biological and nuclear — have been pursued by different states and chemical weapons have even been used in the region on several occasions. She mentioned fundamental ongoing territorial, religious, ethnic and other disputes that underline that the reality of WMDs and that the acquisition of WMDs in the region is interrelated and politically and security-motivated. Out of the seven violations of the Treaty on the Non-Proliferation of Nuclear Weapons (NPT), Dr. Chen said five are from the Middle East — Iran, Iraq, Libya, Syria and Egypt. This situation illustrates the risk associated with nuclear programs in unstable countries and war zones. It is unclear if any Middle Eastern country possesses biological weapons. The unstable nature of the Middle East also carries the risk of terrorist groups obtaining WMDs.
In February 2015, the Ja?far al-Tayya-r brigade and the al-Nusra Front gained control of the al-Kibar site (also called Dair Aizour) in Syria, where a nuclear reactor believed to have been under construction was destroyed by Israel during an air raid in 2007. According to Zanders, the Islamic State in Iraq and Syria (ISIS) — a terrorist group against which US-led Western and Arab coalition forces are currently carrying out an air campaign in both Iraq and Syria — has not obtained WMDs.
Turkey, a NATO member and a neighbor to the Middle East, came under criticism a long time ago for using white phosphorus — a kind of a chemical weapon — against militants from the outlawed Kurdistan Workers’ Party (PKK). However, Zanders stated that such allegations from the PKK have never been confirmed by international organizations addressing WMDs.
The absence of a security framework or organization in the Middle East — where there is no regional conventional arms control culture — to mitigate the danger of WMDs poses a great threat to the region in particular and the world in general.
[Cross-posted from The Trench]
The Israeli Disarmament Movement together with the Chemical Weapons Convention Coalition (CWCC) and Green Cross convened two days of roundtable discussions on Chemical Weapons, Israel and the Middle East in Tel Aviv. The third day, 12 November, a briefing was held in the Knesset. In a region where (existential) security and the nuclear weapons stand central to any debate on arms control strategies, the exclusive focus on chemical weapons (CW) was a rare occurrence.
The meeting goals were twofold: promote ratification of the Chemical Weapons Convention (CWC) by Israel and to have Israel take a more positive stance in the diplomatic engagements to establish a zone free of non-conventional weaponry in the Middle East. The conveners viewed CWC ratification as a potential significant step towards achieving the latter goal.
Each day had different ambitions. Day 1 sought to broaden knowledge of CW issues and the functioning of the CWC among a diverse group of Israeli civil society constituencies and reporters. Day 2 followed Track II approach, engaging representatives from Israeli academic institutions and think tanks, and other policy shapers. On the final day the invited speakers briefed parliamentarians in the Knesset.
This report summarises external arguments why Israel should ratify the CWC. The next posting will focus on Israeli views.