Chapter 10: To Blame or Not to Blame?

Toxic chemicals have been used in conflicts since ancient times, probably starting with poison-tipped arrows and spears, and there are accounts from centuries ago of armies using smoke or noxious fumes to suffocate enemies or force them to retreat. Nevertheless, chemical weapons have often been regarded as an especially cruel and “uncivilised” form of warfare and there have been various attempts to restrict their use. The first international move in that direction came in 1675 when France and the Holy Roman Empire signed an agreement prohibiting poisoned bullets. Almost 200 years later the 1874 Brussels Convention on the Law and Customs of War sought to ban poisons and weapons that “cause unnecessary suffering”, but it never came into force.

The first multilateral effort to establish “laws and customs of war” came with the two Hague Conventions of 1899 and 1907 which included a commitment to “abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases”. With the outbreak of the First World War, however, the Hague Conventions were widely flouted. More than 90,000 soldiers died as a result of chemical attacks and almost a million suffered horrible injuries. Revulsion at that led to the 1925 Geneva Protocol which banned the use of chemical and biological weapons in war but stopped short of banning the production or stockpiling of them.

Production and stockpiling were eventually outlawed by the Chemical Weapons Convention which came into force in 1997. The Organisation for the Prohibition of Chemical Weapons (OPCW) was established at the same time as an inter-governmental body to oversee the Convention’s implementation. Its main role was to supervise the destruction of existing stockpiles and production facilities, but it also carried out periodic inspections to check for any forbidden activity. These were highly technical tasks requiring a good deal of expertise.

An annex to the Convention also gave the OPCW power to investigate suspected use of chemical weapons, but only if the weapons were used in the territory of one of the Convention’s member states. Syria was not a member when the first chemical attacks were reported there – which meant any investigation was a matter for the UN rather than the OPCW. In those circumstances, according to the Convention, the OPCW should “closely cooperate” with the UN’s Secretary-General and put its resources at the Secretary-General’s disposal if asked to do so. For that reason the first investigation in Syria, headed by the Swedish expert Åke Sellström, was conducted under UN auspices with the OPCW only providing technical support. Once Syria joined the Convention the position was reversed and the OPCW took charge of investigating, with the UN providing support.

Creation of the Fact-Finding Mission

Starting in April 2014, reports of chemical attacks in Syria began to multiply and it became clear the OPCW would need a formal mechanism for investigating them. To that end, Director-General Ahmet Üzümcü announced the creation of a Fact-Finding Mission (FFM). The decision, he said, was based on his personal authority to “seek to uphold at all times the object and purpose of the Chemical Weapons Convention”, though he had also secured prior approval from the UN Secretary-General. Three days before making the announcement he had met Ban Ki-moon who promised UN help with security, logistical, and operational aspects of the FFM in order to ensure “the safe access and movement of OPCW personnel, any accompanying United Nations personnel, and their equipment and samples”.

The mission’s first task was to investigate allegations of chlorine use in three Syrian villages: Talmenes, al-Tamanah, and Kafr Zita. Operating under war conditions, the FFM faced considerable difficulties, especially regarding access. Despite having received assurances from both sides in the conflict, when the team tried to visit Kafr Zita in May 2014 its convoy came under attack and was forced to turn back. Nevertheless, the FFM continued gathering evidence from a variety of sources and the following September it reported “compelling” evidence that a toxic chemical had been used as a weapon “systematically and repeatedly”, and concluded “with a high degree of confidence” that chlorine was the toxic chemical in question. After that, the FFM’s reports became a regular feature of the Syrian conflict. Between June 2014 and March 2019 it produced 17 of them, though they covered only a small proportion of the alleged attacks.

The Fact-Finding Mission had a clear but limited brief: to establish whether or not a toxic chemical had been used as a weapon. In line with the mandate of Sellström’s earlier mission and previous investigations by the UN in the 1980s, it was not empowered to attribute blame. Even so, the FFM’s findings were routinely challenged by the Assad regime and its defenders. Two reports in particular, regarding events in Khan Sheikhoun (2017) and Douma (2018), were raked over at great length on social media – largely because these were the two cases that had resulted in US-led military reprisals.

In the case of Khan Sheikhoun the FFM found that “a large number of people, some of whom died” were exposed to sarin and said the sarin was “likely” to have been released from a spot where there was a crater in a road. “Based on such a release,” the report concluded, “the only determination that could be made was that sarin had been used as a weapon”. In Douma the FFM found “reasonable grounds” for believing a toxic chemical had been used as a weapon. The chemical in question, it said, contained reactive chlorine and was likely to have been molecular chlorine. As with other reported attacks, the regime’s defenders refused to accept these conclusions.

Identifying perpetrators

Establishing basic facts about suspected chemical attacks was a necessary step but it served no useful purpose without some follow-up. To that end, in August 2015 the UN Security Council decided – unanimously – to set up a Joint Investigative Mechanism (JIM). Its purpose was to “identify to the greatest extent feasible individuals, entities, groups, or governments who were perpetrators, organisers, sponsors or otherwise involved in the use of chemicals as weapons, including chlorine or any other toxic chemical, in the Syrian Arab Republic”. The JIM’s activities were confined to those cases where the FFM had already determined that chemical weapons were used or likely to have been used, and its task was to examine all available evidence with a view to assigning culpability. However, the JIM was not a judicial body; it could identify suspects but had no power to take action against them.

After several months trawling through the evidence and considering how to go about its task, the JIM decided to focus on nine specific cases and in August 2016 reported its first findings, attributing two chlorine attacks to Syrian government forces and a third one – involving sulfur mustard – to Islamic State fighters. The Assad regime responded with a 17-page critique complaining about the JIM’s reliance on “unprofessional and politicised” reports by the Fact-Finding Mission and asserting that chlorine was an “antiquated” weapon which the regime had no reason to use. Shortly afterwards, the JIM issued a further report, blaming Syrian government forces for a chlorine attack on Qmenas in 2015.

Operating under the joint auspices of the UN and the OPCW, the JIM had initially been given a one-year mandate. As its first year came to an end there was work still to be done and wrangling broke out over an extension. The US argued that the JIM must be allowed to continue because it was the only body with the power to identify those involved in using chemical weapons. Even if its impact was small, it had reduced the number of attacks and was thus saving lives, the US said. Russia was reluctant but on this occasion did not oppose an extension. However, in an apparent move to deflect attention away from the Assad regime, Russia’s UN representative, Vitaly Churkin, highlighted the threat from chemical weapons in the hands of terrorists and called for the JIM’s scope to be extended beyond Syria. It was crucial, Churkin said, that the JIM should not be used as a tool to criticise the Syrian government.

While the resulting Security Council resolution continued to focus the JIM’s activities solely on Syria it did go some way towards acknowledging Russia’s concerns about terrorism. It “encouraged” the JIM to “consult appropriate United Nations counter-terrorism and non-proliferation bodies ... in order to exchange information on non-state actor perpetration, organisation, sponsorship, or other involvement in use of chemicals as weapons”. The resolution made clear, however, that these counter-terrorism provisions applied only to chemical attacks in Syria.

With its mandate extended for a further twelve months, the JIM took up two more cases previously investigated by the FFM. One was the sarin attack on Khan Sheikhoun in April 2017 which, according to reports at the time, killed at least 74 people and injured hundreds more. The other was a mustard gas attack in Um Housh, in Idlib province, the previous September which injured two women. In what turned out to be its final report, the JIM blamed ISIS/Daesh for the Um Housh attack and the Syrian government for Khan Sheikhoun. Reviewing the two cases in tandem helped to give an appearance of even-handedness but Russia had already rejected the FFM’s version of events in Khan Sheikhoun on which the JIM based its findings.

In November 2017 Russia blocked a further renewal of the JIM’s mandate – which put an end to its existence. A few months later the United States proposed setting up a new independent mechanism for an initial period of one year – once again with power to identify those responsible for chemical attacks in Syria. The proposal had majority support in the Security Council but Russia, seeing it as an attempt to re-create the JIM, used its veto.

Deaths in Douma

The American move came a few days after a suspected chemical attack in Douma where dozens of people were reported to have died. Douma, about six miles from the centre of Damascus, lay in the Eastern Ghouta region which government forces had been actively seeking to recapture since February. By March they had succeeded in splitting the region into three enclaves, each controlled by a different rebel militia. At that point, according to a French government report, “the Syrian regime’s political and military strategy consisted in alternating indiscriminate military offensives against local populations, which sometimes included the use of chlorine, and pauses in operations for negotiations”.

Fairly quickly, two of the armed groups, Ahrar al-Sham and Failaq al-Rahman, accepted surrender terms which allowed fighters and their families to be bussed off to northern Syria, leaving the third group, Jaish al-Islam (”The Army of Islam”), still holding out. On 4 April some members of Jaish al-Islam also accepted terms but about 5,000 of them – mostly in Douma – refused. As a result of that, the regime resumed its bombardment of Douma and on 7 April, amid intense fighting, there were reports of a chemical attack. The following day, Jaish al-Islam surrendered.

On 13 April the White House announced:

“The United States assesses with confidence that the Syrian regime used chemical weapons in the eastern Damascus suburb of Douma on April 7, 2018, killing dozens of men, women, and children, and severely injuring hundreds more ...

“A significant body of information points to the regime using chlorine in its bombardment of Douma, while some additional information points to the regime also using the nerve agent sarin. This is not an isolated incident – the Syrian regime has a clear history of using chemical weapons even after pledging that it had given up its chemical weapons programme.”

Next day Britain and France joined the US in a series of airstrikes that were said to have targeted government facilities connected with chemical weapons.

Snoopers in the car park

Meanwhile, the OPCW was preparing to send its Fact-Finding Mission to Douma but just as the team was heading for Syria something very odd happened. Four Russian intelligence agents were caught trying to hack into the organisation’s wifi system from a car park next to its headquarters in the Netherlands. According to Director-General Arias this was not the first time the OPCW had been targeted. There had been cyber attacks since the beginning of the year and the OPCW had recently established a special fund to bolster its cyber security.

The Russian agents had arrived in the Netherlands on diplomatic passports so they were quietly expelled rather than being arrested, and it was several months before the story became public. The exact purpose of the hacking attempt was unclear but there were a couple of possible reasons for Russian snooping at the time. One was the despatch of the FFM to Douma and the other was the Skripal poisoning, since the OPCW was providing technical help to British investigators.

Examination of a laptop found in the agents’ car pointed to its previous use for hacking operations on matters of interest to Russia. In September 2016 it had been logged into the wifi system at a hotel in Switzerland where the World Anti-Doping Agency was holding a conference. The laptop had also been used in Kuala Lumpur in December 2017, apparently trying to glean information about the investigation into flight MH17 – the Malaysian airliner shot down over Ukraine by a Russian missile.

Another discovery from the laptop was that someone had recently used it to gather information about one of the OPCW’s designated laboratories – the Spiez laboratory in Switzerland which had earlier done crucial work linking the sarin used in Khan Sheikhoun to the Syrian government’s stockpile. Tickets found in the agents’ possession showed they had been planning to travel to Switzerland after completing their task in the Netherlands. The Spiez lab had been commissioned by the OPCW to analyse biomedical samples in connection with the Skripal poisoning. In line with confidentiality rules, OPCW member states were not told which labs had been chosen and were not shown the full results of their analysis but somehow Russia had found out.

On 14 April (a day after the car park incident) foreign minister Lavrov made a dramatic claim which appeared to exonerate Russia of involvement in the Skripal affair. Reading from the Spiez lab’s report, he said it had detected “traces” of BZ – a chemical that incapacitates people but is not normally lethal. Based on that, Lavrov suggested the Skripals had been poisoned with BZ rather than a Novichok nerve agent as Britain and the OPCW maintained.

Russia’s Sputnik News noted that BZ had been developed by a Swiss pharmaceutical company in 1951 and later used in the armed forces of the US, Britain and other Nato member states. “More importantly,” it said, “BZ has never been produced in the Russian Federation or on the territory of the USSR.” It also pointed out that the OPCW’s report on the lab tests had “not made a single reference to the Spiez laboratory’s discovery”.

While it was true that the lab had detected BZ, there were good reasons for ignoring it. A few days later the OPCW explained that the BZ had no connection with the Skripals: it was part of a control sample to check that the labs were doing their job properly. Russia had jumped to the wrong conclusion about its significance.

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