Chapter 14: Questions of Confidentiality

 

 

Confidentiality was central to the OPCW's activities. Its routine work verifying compliance with the Chemical Weapons Convention needed access to information that was often sensitive – information that governments and businesses would be reluctant to disclose unless they were confident that it would be kept safe and not misused. At times member states took their demands for confidentiality to extreme lengths. South Korea, for example, refused to be publicly identified in the OPCW’s list of countries that had destroyed their chemical stockpiles, so it appeared anonymously as “another State Party”.

The more confidentiality, the less transparency – though in theory that should not have been a problem. The OPCW had been conceived on the basis that the scientists it employed were fully qualified for their tasks and that the experts it consulted were the best available: they didn't need to explain how they reached their conclusions, because they could be trusted. As a result of the investigations in Syria, though, their expertise and trustworthiness were now being challenged. Populist currents were dismissive of experts, and social media users sought to challenge their findings.

The principle of confidentiality had been established during the drafting of the Chemical Weapons Convention and was built into the system from the start. The Convention itself had a 23-article annex on confidentiality which required the OPCW to operate “a stringent regime governing the handling of confidential information” and said “all data and documents obtained by the Technical Secretariat shall be evaluated ... in order to establish whether they contain confidential information”. Information was to be treated as confidential if its unauthorised release could “cause damage” to the Convention’s implementation mechanisms or the state to which it referred. To maintain this policy the OPCW not only had a Policy on Confidentiality but also a Confidentiality Commission and an Office of Confidentiality & Security. Its rules and regulations forbade employees from speaking to the media, giving talks or writing about their work without permission. Even after leaving the OPCW they were not allowed to disclose any information gleaned while working there unless it had already been made public.

For the Fact-Finding Mission, confidentiality was seen as a way to safeguard the integrity and independence of its investigations. Witnesses remained anonymous for their own protection and experts consulted by the FFM were not identified either – again, with the intention of protecting them and preventing any interference from outside. In the published reports evidence from witnesses was combined and condensed so as to give a narrative of the alleged events. The original testimony was not available for public scrutiny, and while this prevented witnesses from being identified it also opened the door to allegations that the FFM was cherry-picking evidence.

Similarly, the FFM’s reports summarised the findings of the experts it consulted but without giving details of how they arrived at them. As far as the OPCW was concerned, their expertise was sufficient reason to accept the results of their analysis: it was enough to state (as the report on Douma did) that the experts were internationally recognised for their knowledge, skills, and experience, that they came from three different countries, worked separately using different methodologies and had all come to the same conclusions.

The FFM’s own internal deliberations were also hidden from public view. Director-General Arias described the process. “The Secretariat encourages serious and professional debates within, so all views, analysis, information and opinions are considered,” he said. In connection with the Douma investigation “all available information was examined, weighed and deliberated. Diverse views were expressed, discussed and considered against the overall facts and evidence collected and analysed.” In theory the privacy allowed staff to speak freely within the organisation but there was no way of knowing how the “diverse views” that Arias spoke of were eventually reconciled to produce a single “official” view and, again, that created scope for speculation about what might be happening behind closed doors.

A further complication for the OPCW was that one of its member states – Russia – was actively seeking to undermine its confidentiality. Russian agents had been caught red-handed trying hack into the OPCW’s wifi and had been snooping on the OPCW-designated Spiez laboratory in Switzerland. Russia had also secretly obtained a copy of the Spiez lab’s report on samples from the Skripal poisoning and foreign minister Lavrov had openly flouted the confidentiality rules by quoting it during a news conference. At another news conference, Russia paraded alleged witnesses from Douma – in blatant disregard for the principles of witness protection.

In an apparent reference to Lavrov and the Spiez lab affair Director-General Arias told a meeting of the OPCW’s executive council: “I do not think it is in the interest of the organisation that the Secretariat gets involved in public discussions with states parties.” Inexorably, though, the OPCW was being dragged into engaging with its critics and a year later it was forced into doing what it had said it would never do. After the Final Report on Douma was published Russia and Syria submitted written critiques. Normally correspondence between member states and the OPCW would remain private but on this occasion Russia asked for its critique to be treated “as an official-series document of the Ninetieth Session of the OPCW Executive Council” – which meant that it had to be published. That in turn obliged the OPCW to publish a detailed reply, thus breaking its own rule of not engaging in public debate.

Internal investigation

The leaking of Henderson’s document about the Douma cylinders also pushed the OPCW into territory where it had not intended to go. His findings were not mentioned in the FFM's Final Report and in the absence of an explanation critics were claiming they had been deliberately suppressed.

The OPCW press office's initial response to media enquiries was singularly uninformative. It said an internal investigation into the leak was under way but “in order to ensure the privacy, safety, and security of personnel, the OPCW does not provide information about individual staff members ... At this time, there is no further public information on this matter and the OPCW is unable to accommodate requests for interviews.”

This did nothing to dampen speculation and almost a month passed before Arias elaborated further:

“In March 2019, I received the first indication that an internal document pertaining to the Douma incident, produced by a staff member could have been disclosed outside of the Secretariat. It should be noted that, [at] the time of the FFM deployment in Douma in 2018, this staff member was a liaison officer at our Command Post Office in Damascus. As such, and as is customary with all deployments in Syria, he was tasked with temporarily assisting the FFM with information collection at some sites in Douma.

“The document produced by this staff member pointed at possible attribution, which is outside of the mandate of the FFM with regard to the formulation of its findings. Therefore, I instructed that, beyond the copy that would exclusively be kept by the FFM, the staff member be advised to submit his assessment to the IIT, which he did, so that this document could later be used by the IIT ...

“With regard to the ballistics data collected by the FFM, they were analysed by three external experts commissioned by the FFM, and working independently from one another. In the end, while using different methods and instruments, they all reached the same conclusions that can be found in the FFM final report.390”

As a result of the WikiLeaks documents the internal investigation into Henderson’s activities was expanded to include Whelan’s “whistleblowing” activities and it found both of them had committed “deliberate and premeditated breaches of confidentiality”. The report identified them only as “Inspector A” and “Inspector B” but there was no doubt who it was referring to. Both men declined to cooperate with the investigation.

Commenting on the report at a briefing for the States Parties, Director-General Arias said: “Inspectors A and B are not whistleblowers. They are individuals who could not accept that their views were not backed by evidence. When their views could not gain traction, they took matters into their own hands and breached their obligations to the Organisation. Their behaviour is even more egregious as they had manifestly incomplete information about the Douma investigation. Therefore, as could be expected, their conclusions are erroneous, uninformed, and wrong.”

Regarding Henderson, the report said that in July 2018 “without proper authorisation” he had contacted companies about carrying out studies of the Douma cylinders. The FFM’s team leader heard about this and told him not to contact third parties outside the OPCW but Henderson decided to carry on and commissioned university professors to help with the work. He visited the professors twice – on both occasions while he was on leave. The professors believed they had been officially engaged by the OPCW, though Henderson was the only person they ever spoke with. He later obtained written authorisation from a high-level OPCW official who, the report said, was unaware of the FFM team leader’s instruction that he should not contact external third parties [1]. To assist the professors in their analysis, Henderson gave them a USB drive which, when later examined by investigators, was found to contain information classified as “Highly Protected”. He also gave them documents containing confidential information.

Henderson later showed his assessment of the cylinders to at least seven OPCW staff “who did not have a need to know its contents”, the report said. There was “insufficient evidential basis” to say that he had passed it to the Working Group on Syria, Propaganda, and Media, though he told officials he was happy it had been leaked “because finally his information was publicly available”.

Though not mentioned in the report, there were indications that Russia had received a copy of Henderson’s document before it was published by the Working Group on 13 May 2019. Russia’s letter to the OPCW complaining about the FFM’s Douma investigation, dated 26 April 2019, made similar arguments and in places appeared to be paraphrasing Henderson. Some sentences in both documents had the same structure and made exactly the same point but with minor differences in wording.

For example, Henderson’s document said:

“The dimensions, characteristics and appearance of the cylinders and the surrounding scene of the incidents, were inconsistent with what would have been expected in the case of either cylinder having been delivered from an aircraft.”

The Russian letter said:

“The parameters, characteristics and exterior of the cylinders, as well as the data obtained from the locations of those incidents, are not consistent with the argument that they were dropped from an aircraft.”

Henderson wrote:

“Observations at the scene of the two locations, together with subsequent analysis, suggest that there is a higher probability that both cylinders were manually placed at those two locations rather than being delivered from aircraft.”

The Russians wrote:

“The existing facts more likely indicate that there is a high probability that both cylinders were placed at Locations 2 and 4 manually rather than dropped from an aircraft.”

On Whelan’s activities, the internal investigation’s report said that after expressing “some initial concerns” about the draft Interim Report on Douma, he (and other members of the drafting team) had given written agreement to the text that was eventually published in July 2018. Whelan left the organisation at the end of August and the OPCW continued its analysis for a further six months before issuing the final report.

Despite having left, Whelan “continued to approach members of the Secretariat to discuss confidential information regarding the Douma investigation that was classified as Highly Protected at the time it was disclosed” and “displayed a desire to have continued access to and influence on the Douma investigation”. These activities included sending a letter to the Director-General which challenged the findings of the final Douma report and contacting OPCW staff in an “attempt to convince them to join his campaign”.

Meetings at the UN

Russia, meanwhile, continued to call for “a professional dialogue” about the events in Douma, on the grounds that the FFM’s Final Report had caused concern among “recognised experts” such as “members of the Professor P Robinson’s group”. It also demanded publication of the reports from experts consulted by the FFM and, when the OPCW refused (citing the need to ensure their personal security), Russia suggested no experts had actually been consulted.

In January 2020 Russia resorted to a new tactic for keeping up the pressure, using a device known as the Arria Formula to convene a meeting under the auspices of the UN Security Council. The practice had been initiated by Diego Arria, a Venezuelan diplomat who, while chairing the council in 1992, wanted a Croatian priest to give witness testimony about violence in Bosnia and Herzegovina. Arria couldn’t find a way to make it part of the Security Council’s official business, so instead he invited members to meet the priest informally in the delegates’ lounge. Since then, this type of meeting had become quite common – mainly for briefings from NGOs or on topics where the Security Council failed to agree to a formal discussion. They were chaired by the country convening them but Russia did not normally make much use of them. Although there were 22 such meetings in 2019, Russia’s Arria meeting over Douma appeared to be the first it had called since 1998.

The meeting included statements from Russian ambassador Alexander Shulgin and Syrian ambassador Bashar Jaafari, plus a presentation from Maxim Grigoriev of Russia’s Foundation for the Study of Democracy – all rehearsing familiar arguments. Shulgin told the meeting: “The quality of the FFM’s work on the high-profile case in Douma concerned recognised experts and reputable scientists from several states. Some of them, known as members of the Professor P Robinson’s group [the Working Group on Syria, Propaganda and Media], sent a number of requests to the Technical Secretariat [of the OPCW]. But they were also arrogantly recommended to re-read the FFM report, and their questions related to substance issues were left unanswered.” Syrian ambassador Jaafari asserted that his country had never used chemical weapons “and does not have the capability of using them now, because it does not possess them and considers their use contrary to its moral and international obligations”.

The main point of interest at the meeting, though, was an appearance by former inspector Ian Henderson, making his first public comments on the affair. He had been invited by China but could not attend in person because of visa problems and instead was seen in a six-minute video recorded at an undisclosed location.

Henderson’s remarks were considerably more guarded than his supporters would probably have liked. “I’m not a whistleblower,” he said. “I don’t like that term. I’m a former OPCW specialist who has concerns.” In contrast to Jaafari, who had accused the OPCW of a “deliberate manipulation of evidence, falsification of facts” and a “lack of professionalism”, Henderson said: “I hold the OPCW in the highest regard, as well as the professionalism of the staff members who work there. The organisation is not broken; I must stress that. However the concern I have does relate to some specific management practices in certain sensitive missions.” The team deployed to Douma had “serious misgivings that a chemical attack had occurred”, he said – and that was their position at the time the interim report was issued in July 2018. The final report, in March 2019, was “a complete turnaround”, he added, and “did not make clear what new findings, facts, information, data, or analysis in the fields of witness testimony, toxicology studies, chemical analysis, and engineering, and/or ballistic studies” had resulted in this change. He also alluded to his own study of the cylinders, saying they “provided further support” for the view that there had not been a chemical attack.

“I’m very aware that there is a political debate surrounding this,” he continued. “In my situation, it’s not a political debate.” He called for the issue to be “properly resolved” through “the rigors of science and engineering”. Henderson also provided a more detailed written statement which Russia attached to a letter to the UN. The earlier letter circulated by the Courage Foundation and its panel’s commentary on Whelan’s presentation were attached too, thus becoming enshrined in the UN’s official records.

A second Arria meeting took place in September 2020, jointly hosted by Russia and China, and with three guest speakers appearing by video link because of the coronavirus pandemic: Ian Henderson (again), plus Aaron Maté from The Grayzone website and Theodore Postol, the emeritus professor at Massachusetts Institute of Technology who had been disputing the use of chemical weapons since the Ghouta attack in 2013.

In a brief statement, Henderson said he had little further to add after the previous meeting. “I remain impartial,” he said, “and would therefore kindly request that you don’t refer to my role, or that of any other Douma Fact-Finding Mission inspectors, as being part of anyone’s disinformation campaign.” He continued: “As a scientist, I cannot be convinced by the only defence of the Douma FFM report being one that states ‘we had the best (anonymous) experts; therefore, the case is closed; believe us, trust us'. There is a strong alternative case ... All we have been saying all along is that surely there are now sufficient clear contradictory facts and information to justify a transparent technical enquiry, aimed at clarifying what happened in Douma, conducted in a manner that demonstrates scientific reigour and integrity.”

Professor Postol gave a slide presentation repeating a claim he had made earlier – that there was no sarin attack on Khan Sheikhoun in 2017. It was unclear why he was persisting with this because even the Syrian government had accepted that sarin was released there. The attack was politically contentious, though, as the UN’s Joint Investigative Mechanism (JIM) had formally blamed the Syrian government – with the result that Russia had used its Security Council veto to put a stop to the JIM’s activities.

Journalist Maté summarised the allegations made by Whelan and others about Douma, which he said pointed to the conclusion that “the OPCW was used to retroactively justify the bombing of Syria”. Like many of those attacking the OPCW on the alternative media circuit, Maté had won the Serena Shim Award for Uncompromised Integrity in Journalism – as had the website that he worked for and two of its other staff, Max Blumenthal and Ben Norton.

Besides these contributions, 30 national delegations took part in the discussion. Kelly Craft, the American representative, dismissed the meeting as a Russian stunt. “The question we must ask ourselves,” she said, “is why is Russia so eager to protect a regime that has repeatedly used chemical weapons against its own people? What we are seeing here today is another desperate and failed attempt by Russia to further spread disinformation, attack the professional work of the OPCW, and distract from an ongoing effort by responsible nations to hold the Assad regime accountable for its use of chemical weapons and numerous other atrocities. We have seen this performance before: it is getting old and it does not work. The world can see what is happening.”

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FOOTNOTE

[1] According to Henderson the “senior official” was the OPCW’s Director of Inspectorate.