The use of chlorine gas in Syria is testing chemical diplomacy
By Cindy Vestergaard:
The first report on the UN’s investigation into use of chemical weapons (CW) in Syria issued on 16 September 2013 concluded that chemical weapons, specifically the nerve agent sarin, had been used - marking the end of what had become the world’s longest reprieve from CW use in conflict in a century. The international response was swift and unprecedented, leading to Syria’s accession to the Chemical Weapons Convention (CWC) and removal of its stockpiles.
The Organisation for the Prohibition of Chemical Weapons (OPCW) has since released three more reports concluding “with a high degree of confidence” that chlorine has also been used as a weapon in the ongoing conflict – this time with Syria as a State Party to the CWC. Response by the UN Security Council to the chlorine attacks however has been less inspiring with Russia and China insisting that the issue is one for the OPCW, not the Security Council. The question then becomes after confirmed cases of CW use in the post-CWC world, what’s next?
Stalled Chemical Diplomacy
After the Ghouta attacks there was a flurry of activity, including joint Russia-US leadership, Syria’s CWC accession and UN Security Council (UNSC) Resolution 2118 which noted the Council was “deeply outraged by the use of chemical weapons,” emphasizing “that credible future allegations should be investigated,” and that “those responsible for any use of chemical weapons must be held accountable.” A joint UN-OPCW mission was then established on 16 October and successfully removed all of Syria’s (declared) chemical weapons by the end of June 2014. The response was unprecedented and it went extraordinarily well: within 13 months of the Ghouta attacks, 96% of Syria’s total stockpile had been destroyed. UNSC response to the chlorine attacks – and OPCW confirmation - however has been less inspiring.
On 7 January 2015, the UNSC met to discuss the results of the third report of the OPCW Fact-Finding Mission to investigate the allegations of chlorine use that emerged in April 2014. Eight of the fifteen council members, plus Jordan, issued a letter accompanying the report underscoring that Resolution 2118 states that any use of CW threatens international peace and security and must be condemned. In the meeting, these eight also urged the UNSC to respond to the OPCW’s findings. Russia and China insisted however that the report should not be made public and that it was an issue for the OPCW, not the UNSC. With Russia and China essentially blocking immediate UNSC response to the OPCW’s recent findings, the issue of non-compliance does seem to fall back to the OPCW, specifically the Executive Council and the Conference of States Parties.
Role of OPCW Organs
Enforcement of violating the CWC is set out in Article XII, particularly paragraphs 3 and 4, where cases of ‘serious damage to the object and purpose of the treaty’ or ‘cases of particular gravity’ can be referred to the Conference of States Parties or to the UN General Assembly and the UN Security Council. The CWC (Article VII, paragraph 36) also states that the Executive Council (EC) can bring cases of non-compliance to the attention of the Conference and make recommendations regarding measures to redress the situation. The latter may be better placed for immediate and flexible response (as seen with Resolution 2118). A second decision by the Conference could thus be seen as redundant, but a special session could be called to consider the evidence and circumstances of the Syrian case that might have a bearing on responding to matters of non-compliance.
To date, the Conference has met nineteen times in regular week-long annual sessions and three special sessions to ‘Review the Operation of the Chemical Weapons Convention,’ or ‘Review Conferences,’ which are held every five years. Three additional special sessions have been held on the margins of the Review Conferences to decide on issues such as the termination of the first Director General and appointment of the second; on OPCW tenure policy; and amending the Conference’s Rules of Procedure. While these special sessions were organisational in nature, the Conference may make recommendations and take decisions on any questions, matters or issues within the scope of the Convention, including Article 1 and its prohibition on use. For a special session on violations in Syria, a request would have to be made by the EC, the Conference, or any member state supported by one-third of members (Article VII, paragraph 12). Unless specified in the request, a special session then has to be convened not later than 30 days after receiving the request from the OPCW Director General.
Article XII of the CWC does not give the Conference explicit power of economic sanctions, referring instead to ‘measures to redress a situation’ while its provisions ‘in cases of particular gravity’ essentially provide a fall back to the UN. Whether the Conference would decide to recommend the issue back to the UNSC and whether the Council would take it further or not, a special session would allow members the opportunity to review the UN and OPCW reports, voice their views and discuss how to respond to the treaty’s first, and confirmed, violations of use. The set-up of a special session would depend on the request made; but its outcomes depend on the willingness of states parties to address a violation of non-use. So far the majority of Conference decisions have been taken by consensus, but Article VIII (paragraph 18) does state that if consensus is not attainable on matters of substance (which CW use would certainly be) a two-thirds majority of members present is required for a decision to be made. In other words, Russia and China (and Syria) could not keep the Conference from taking a decision.
There has been some debate about the role of the International Criminal Court (ICC) in adjudicating CW use in Syria. Given that the UN and OPCW reports do not assign blame to a certain party or parties, a special session of the Conference would not likely either, but the ICC could if given the mandate. The Conference however does not have the power to refer the case directly to the ICC. UNSC referral is the only way for the ICC to have jurisdiction since Syria is not a party to the Rome Statute that established the Court in 2002. Such an attempt was made on 22 May 2014, but vetoed by China and Russia. The proposed resolution was not specific to CW use however as it would have given the Court the mandate to investigate all war crimes and crimes against humanity during the course of the Syrian conflict.
The Conference could decide to send the issue back to the UNSC with a recommendation for referral to the ICC, which Russia and China would likely block. That said, if 127 states would be in favour (the required 2/3 of members), such a recommendation would send a strong signal to the Security Council that breaking the world’s longest ‘chemical peace’ in the post-CWC world is not acceptable and has to be judged not by individual capitals, but by an international court of law. The referral would then be specific to presenting evidence to the ICC for prosecuting those responsible for CW use in Syria (not all war crimes), reinforcing support for UNSC Resolution 2118 and its call for accountability. Another potential outcome is for the Conference to ask for clarifications on outstanding legal issues that have arisen from Syria’s use, such as ambiguities surrounding the handing over of forensics to an international court. In this instance, the Conference could ask the International Court of Justice (ICJ) for an opinion irrespective of whether the UNSC sends the Syria case to the ICC or not, future CWC violations might. There is doubt however as to if the ICJ would (or could) offer such an opinion, but there is also doubt that it could not.
Syria’s accession to the CWC and destruction of stocks is unprecedented. No other State Party has had its chemical weapons removed and destroyed beyond its borders, let alone acceded to a treaty related to weapons of mass destruction (WMD) during armed conflict. The use of chemical weapons however is not unparalleled in history; it is the only WMD that has been used (again and again) since WWII. The only difference for the Syrian case is that the CWC exists, and it becomes the first case of CW use in the post-CWC world. Consequently, the Syrian case is visibly testing the provisions of the Convention and any action or non-action by the Executive Council or Conference will set a precedent as to how States Parties respond to a violation of the CWC’s main prohibitions. Although there may be a sense (or hope) among many that the Syrian case represents the last use of chemical weapons in history, there are still six countries outside of the CWC, with at least one (North Korea) still suspected of holding CW stockpiles. Further action will reinforce that the CWC, the world’s first – and only – verifiable disarmament treaty, can and does respond to violations of chemical peace.
This was originally published by Dansk Institut for Internationale Studier, Jan. 22, 2015