DENYING THE OBVIOUS: 11

Chapter 11: Political wrangling

The chemical attacks in Syria – together with the efforts to deny them – placed the OPCW in an unaccustomed position at the centre of political wrangling. Before the war few people had heard of it and even fewer had much idea what it did. It was one of those obscure international bodies populated by anonymous technocrats, and obscurity suited it well.

The general lack of interest in its activities meant it could get on with them quietly, undisturbed (most of the time) by controversy, and working in this way had proved remarkably effective. Under its supervision 97% of the world’s known stockpiles of chemical weapons had been destroyed – an achievement recognised in 2013 by the award of the Nobel Peace Prize. Some saw the OPCW as a model of international cooperation: with a multinational staff, it was governed and funded by the Convention’s 193 member states and during the first 20 years of its existence decisions on matters of substance were almost always agreed by consensus, without the need for a vote.

War in Syria, though, broke that consensus. For the first time in its history the OPCW faced a situation where one of the Convention’s member states repeatedly flouted the ban on chemical weapons while a small group of other member states, led by Russia, seemed determined to protect it. The picture was further complicated by Russia’s apparent use of a nerve agent against the Skripals and, later, against one of Putin’s most prominent critics, Alexei Navalny. In the words of former Director-General Ahmet Üzümcü, the OPCW was confronted with “a political reality that prevents action beyond a certain point”.

This had fundamental implications for both the OPCW and the Chemical Weapons Convention. If investigations in Syria could be frustrated for political reasons, so could others. Accepting the situation would create a dangerous precedent that threatened to unravel two decades of work towards eliminating chemical weapons.

There were concerns, though, about the effects of pursuing the issue. Organisations like the OPCW needed consensus if they were to work effectively, and the rules for conducting its business – set out in the text of the Convention – had been created with that in mind. Decisions on “matters of substance”, the Convention said, should be taken “as far as possible” by consensus among the member states. It went on to say that if states failed to agree, voting should be postponed for 24 hours “to facilitate achievement of consensus”. If it came to a vote, decisions would need a two-thirds majority among those present and voting. Before the disagreements broke out over Syria consensus had generally been maintained, apart from a crisis in 2002 when the US took a disliking to the organisation’s first Director-General, José Bustani, and forced him out.

Following Bustani’s dismissal consensus had been restored fairly quickly but the rift over Syria looked more fundamental. One salutary example of what could go wrong when consensus broke down was the international Conference on Disarmament. Established in 1979 as “the single multilateral negotiating forum for global disarmament questions”, it had some early successes – among them the Convention on Certain Conventional Weapons in 1983, and the Comprehensive Nuclear Test Ban Treaty in 1996. Since then, though, it had been virtually paralysed for more than 20 years – not only failing to negotiate any more treaties but unable even to agree on a programme of work.

Avoiding vetoes

Although Russia had put an end to the UN’s mechanism for identifying chemical weapon users in Syria, it didn’t put an end to the idea. In May 2018, UN Secretary-General António Guterres accused the Security Council of failing to meet its responsibility regarding chemical weapons. “We cannot allow continued impunity in Syria or elsewhere,” he said, and called for the creation of “a new and impartial mechanism to identify those who use them”.

A few days later Britain proposed an alternative route for identifying users: through the OPCW, where no one had a veto. With support from Australia, Bulgaria, Canada, France, Germany, Japan, New Zealand, Poland, Romania and the United States, it took the unusual step of requesting a special session of the OPCW’s governing body, the Conference of the States Parties. The states parties normally met once a year and the call for a special session was a controversial manoeuvre – there had been only three previous special sessions during the OPCW’s 21-year history. But despite some objections, notably from Russia and Iran, there was enough support from other members and the session went ahead in June 2018.

The meeting considered a British-inspired resolution instructing the OPCW to “put in place arrangements to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic by identifying and reporting on all information potentially relevant to the origin of those chemical weapons”. This would apply only to cases where the FFM found that an attack had occurred or was likely to have occurred, and where the JIM had not already issued a report.

Russia, having been unable to block the special session, came up with a counter-proposal. This sought to take away the Director-General’s power to establish special missions (such as the FFM) and put it in the collective hands of member-states through the Executive Council and the Conference of the States Parties. The Director-General would still have “operational control” of the missions but the member states would “determine their mandate, operational parameters, and their composition”. Russia presented this as way to improve “efficiency” but it would almost certainly have had the opposite effect by increasing the scope for political meddling.

Russia eventually withdrew its proposal. The British-initiated proposal remained on the table but in the absence of a consensus it had to be put to a vote. The result, with 82 in favour and 24 against, comfortably met the Convention’s requirement of a two-thirds majority among those present and voting but, as Russia pointed out, the large number of absentees and abstentions meant it had been supported by less than half the total membership. One interpretation of this was that while Russia had little support many countries viewed the issue as a quarrel between western powers and Russia, and did not want to take sides. Of the 193 member states, 41 stayed away from the special session and among those that did attend 46 took no part in the vote.

The divisions seen at the special session in June continued at the next regular meeting of the states parties in November when Georgy Kalamanov, head of Russia’s delegation, questioned the “legitimacy” of using the OPCW to attribute responsibility for attacks. On that basis, Russia and China called for the formation of “an open-ended group of experts” to consider whether giving the OPCW power to attribute responsibility for attacks was in line with the Chemical Weapons Convention. This looked suspiciously like a delaying tactic, and the proposal was rejected by 82 votes to 30. In fact, there was nothing in the Convention to say the OPCW could not attribute responsibility and several parts of the Convention suggested it could. One of its annexes, for example, said that if an inspection team came across any information that “might serve to identify the origin of any chemical weapons used, that information shall be included in the report”.

Also at the November meeting, states parties were asked to approve the OPCW’s budget for the coming year, including a reported $2.4 million for the attribution mechanism – now officially known as the Investigation and Identification Team (IIT). Unhappy about that, Russia and Iran put forward a series of amendments but they were defeated and the budget was eventually approved by 99 votes to 27.

With funding in place, the OPCW began recruiting and by May 2019 the IIT’s eight-person core team, headed by Mexican lawyer Santiago Oñate Laborde, was complete. Syria, however, refused to cooperate with it. Deputy foreign minister Faisal Mekdad sent a letter saying Syria did not recognise the IIT and, consequently, would not be granting Oñate a visa to attend discussions in Damascus. In two subsequent letters Mekdad went further, saying Syria would not give IIT members access to “any confidential information” relating to chemical weapons. Director-General Fernando Arias wrote back saying that Syria, as a party to the Convention, had a duty to cooperate. Despite his insistence, though, Syria did not budge.

The Douma investigation

In the meantime the OPCW’s Fact-Finding Mission had been pressing on with its investigation of the suspected chemical attack in Douma. The US and its allies had already made clear, a few days after the incident, that they believed it was a chemical attack. A statement from the White House had also noted: “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.”

Punitive airstrikes by the US, Britain and France – reportedly targeting several sites linked to Syria’s chemical weapons programme – had gone ahead without waiting for the outcome of the FFM’s investigation and there was thus a lot interest in whether the FFM would confirm the White House’s claims.

The FFM’s investigation proved unusually lengthy and in July 2018, three months after the events in Douma, it issued an interim report with some preliminary findings – the most important of which was that laboratory tests had found no evidence of sarin. “No organophosphorus nerve agents or their degradation products were detected, either in the environmental samples or in plasma samples from the alleged casualties,” it said. On the question of chlorine, though, the report was far from conclusive: “Various chlorinated organic chemicals were found in samples ... Work by the team to establish the significance of these results is ongoing.”

The main problem with chlorine from an investigator’s point of view is that it’s a very common element. It occurs naturally in many different compounds, so the question is how to distinguish chlorine released in a chemical attack from chlorine that already exists in the environment.

One idea was to check the levels of chloride ions in soil. Chloride occurs naturally in soil but the expectation was that levels would be higher close to the spot where chlorine gas had been released and also higher in places that were downwind of the suspected impact point than those that were upwind. This proved to be the case in two of the FFM’s investigations (Ltamenah, 2017, and Saraqeb, 2018): raised levels of chloride were detected close to the spot where gas cylinders were found, with lower levels as the distance from them increased.

Another approach was to test for relatively uncommon chlorinated molecules that could be the result of exposure to chlorine gas and then try to eliminate other possible causes. While the results of such methods could be strongly suggestive of a chlorine attack, the evidence they provided was circumstantial.

A further problem with chlorine was the absence of any proven way of testing people for exposure to it. While symptoms could give a strong indication, confirming it through laboratory tests was a different matter. Nerve agents left traces in the human body which could be detected for some time afterwards but when the FFM began looking for ways to check people for chlorine exposure it found only one possible method. However, that method had never been tried on humans – all the experiments had been done using nasal tissue from rats – and the FFM concluded that attempting this in field conditions would be “near impossible” and probably not worthwhile.

Eight months after the interim report the FFM issued its final report on Douma, running to 106 pages. It concluded there were “reasonable grounds that the use of a toxic chemical as a weapon took place” and added: “This toxic chemical contained reactive chlorine. The toxic chemical was likely molecular chlorine.”

Weaponising chlorine

Using chlorine as a weapon isn’t difficult. One method employed by suicide bombers in Iraq for several months during 2007 was simply to add chlorine cylinders to vehicles laden with explosives. The results were unpredictable according to Edward Spiers, author of a history of chemical and biological weapons. In some cases the gas was blown away by the explosives. Nevertheless, Spiers wrote, “the attacks proved excellent instruments of propaganda and intimidation, not least as the chlorine gas was visible to its intended victims, causing increased fear”.

In Syria the regime apparently experimented with several types of chlorine weapon before settling on an extremely simple one: standard industrial gas cylinders dropped from the air. Photos of cylinders taken at several locations showed they were enclosed in a rudimentary metal frame or harness which added three additional features: lugs for lifting, tail fins to stabilise the cylinder’s fall, and a wheel assembly which would assist when heaving it out of a helicopter. There was no detonator – apparently on the assumption that the cylinder’s valve would being damaged as it hit the ground, thus releasing the gas.

Two cylinders of this type were found in Douma along with crumpled metal harnesses. One was in a bedroom, having apparently crashed through the roof. The other was on the top-floor balcony/patio of a different building where it appeared to have pierced a hole into the room below. Videos from that building, posted online shortly after the event, showed dozens of bodies in the basement and on the stairway.

In finding there were “reasonable grounds” for believing a chemical attack had taken place in Douma, the FFM made clear that its conclusion was based on an overall view – “the evaluation and analysis of all the information gathered” – rather than any single piece of evidence. As far as use of chlorine gas was concerned, the results of laboratory tests were indicative but not absolutely conclusive. Sampling had revealed numerous chlorinated compounds that “are not generally present naturally in the environment” and one of particular interest was bornyl chloride found in two wood samples. Its presence could be explained by exposure to chlorine gas, though the report added that there were other possible causes: “Based on these findings alone, it cannot be unequivocally stated that the wood was exposed to chlorine gas”.

Targeting the OPCW

Unsurprisingly, the FFM’s findings were rejected by the Syrian regime and its defenders – among them the Working Group on Syria, Propaganda and Media which produced a 7,000-word critique of the report. By that stage, though, the argument was not just about what happened in Douma. It was turning into a generalised attack on the OPCW as an institution, and in particular the creation of the IIT as a vehicle for attributing blame.

“This report discredits OPCW as a source of impartial investigation and undermines it as an international institution,” the Working Group wrote. “On the evidence of this and the defects we have identified in previous reports of Fact-Finding Missions, OPCW is not fit to be entrusted with a remit ‘to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic’ ... It is doubtful whether the organisation’s reputation as an impartial monitor of compliance with the Chemical Weapons Convention can be restored without radical reform of its governance and working practices.”

Continue reading >>>