Author Archives: JP Zanders

About JP Zanders

Jean Pascal Zanders (Belgium) has worked on questions of chemical and biological weapon (CBW) armament and disarmament since 1986. He was CBW Project Leader at the Stockholm International Peace Research Institute (SIPRI), Director of the BioWeapons Prevention Project and Senior Research Fellow responsible for disarmament, arms control and non-proliferation questions at the European Union Institute for Security Studies. He now owns and runs The Trench.

Days of Future Past

Russia proposed to return to negotiations on a legally binding protocol to strengthen treaty implementation at the Meeting of Experts of the Biological and Toxin Weapons Convention (BTWC), which was held in Geneva from 4–8 August. Its informal note discusses the creation of an international body, the Organisation for the Prohibition of Biological Weapons (OPBW). It also tackles two frustrations prevalent among states parties: the convention’s institutional deficit and the lack of any progress in the so-called intersessional process—a series of annual Meetings of Experts (MX) during the summer followed by Meetings of States Parties (MSP) in December in between the quinquennial review conferences.

This posting offers an initial assessment of the proposal and reflects on whether returning to a future that existed in the past could actually propel the BTWC forward.

 A skilful building of anticipation

Last May the Russian Foreign Ministry sent out a brief questionnaire asking states parties whether they are in favour of a legally binding protocol based on the mandate agreed for the Ad Hoc Group (AHG) at the 1994 Special Conference, even if not all BTWC parties were to sign up to the document. The questionnaire offered four possible replies, an unconditional yes or no, a yes with certain conditions, or a no, which might shift to a yes depending on circumstances.

Russia’s opening statement to the MX on 4 August summarised the results:

As of late July, we have received replies—written and verbal—from 28 States Parties: Belarus, India, United States, Brazil, Iraq, Cuba, Pakistan, China, New Zealand, Algeria, Cyprus, Rwanda, Switzerland, Saint Lucia, Australia, Latvia, South Africa, Peru, Malaysia, Republic of Korea, Lebanon, Mexico, Cambodia, Estonia, Colombia, Sweden, United Kingdom, and Lithuania. Of them only three replies contain a negative answer. Other States Parties have not sent in negative answers while many have clearly spoken in favour of resuming negotiations.

Twenty-eight (29, if we may assume that Russia favours its own proposal) out of a total of 170 states parties represents a response rate of about 17%. As only three states checked the unreserved ‘no’, we must therefore assume that Russia interprets the other three possible answers (including the ‘no, but …’) to varying degrees as endorsements. It seems to treat the silence from the majority of states parties likewise.

In all fairness, Russia did not attempt a statistically sound survey. The questionnaire, followed by the opening statement, cunningly built anticipation to the full presentation of ideas at a side event on the second day of the MX. Russia’s opening statement also promised a further exchange of ideas during December’s MSP.

For sure, Moscow’s gambit caught the attention of the delegates. Even opponents of the proposal realise that the discussion will not fade away before the 2016 Review Conference.

 Analysis of the proposal

Russia’s proposal stands on three legs: (1) foundation in the 1994 negotiation mandate, (2) selective adoption of elements once considered by the AHG, including the establishment of an OPBW as implementing agency; and (3) flexibility about the issues that can be considered under the future ‘legally binding protocol’ chapeau. In its current state of conceptualisation, the discussion note does not require all parties to the BTWC to sign up to the envisaged protocol. However, any benefits resulting from the pooling of resources would be shared only among those who do. This raises a fourth element for analysis: the relationship of the proposed protocol to the BTWC and of the OPBW to the Implementation Support Unit (ISU).

Foundation in the 1994 negotiation mandate

Russia roots its proposal in the mandate given to the AHG by the Special Conference of States Parties in 1994. This mandate is still in effect despite the collapse of the AHG negotiations in the summer of 2001. In December of that year, an explicit last-hour effort by the United States to terminate the AHG mandate failed, but caused the 5th Review Conference to be suspended for one year. (The resumed 5th Review Conference adopted the framework for the first intersessional meetings in December 2002.) Russia furthermore argues that the ‘negotiation mandate’ contains ‘a lot of flexibility and does not presuppose the outcome of negotiations in terms of the shape of the future legally binding instrument’.

While it is unquestionably true that the outcome of future negotiations does not necessarily have to be predetermined by the past, the assertion that the 1994 Special Conference granted a negotiation mandate to the AHG is incorrect. Paragraph 36 of the Final Report of the Special Conference (p. 10) created the AHG with a view of considering ‘appropriate measures, including possible verification measures, and draft proposals to strengthen’ the BTWC. The AHG was to submit its report to all states parties for consideration at the 4th Review Conference or a later Special Conference (§38). It was actually the 4th Review Conference that after having considered the report submitted to it ‘encouraged’ the AHG ‘to review its method of work and to move to a negotiating format in order to fulfil its mandate’ (Final Document, p. 29).

This correction is of major significance to the prospects for success of the Russian initiative. The ‘negotiation mandate’ is not as clear-cut or open-ended as the proposal suggests. First, the establishment of the AHG in 1994 built on the work by an earlier Ad Hoc Group of Verification Experts (VEREX), which held four session in 1992 and 1993. The Special Conference had been called to further consider possible verification measures identified by VEREX. Paragraph 36 of the Final Report of the Special Conference outlined four important areas of work for the new AHG (but did not limit them to those four only) and curtailed the acceptable impact of measures the AHG might forward to states parties for further consideration. This was the framework for the AHG report to the 4th Review Conference. Second, to grant the negotiation mandate the 4th Review Conference took into consideration the AHG report. The article-by-article review section of the Final Document is speckled with references to the AHG report, indicating expectations and to a certain degree preferences for further development.

In summary, what now appears an attractive proposition  may actually become the object of heated debates before any discussion on substance. Furthermore, biology, biotechnology and their commercial applications have evolved considerably during the two decades since the Special Conference. States parties would therefore even have to review the VEREX recommendations that served as starting point for the AHG. Expectations from verification have evolved, new stakeholders have emerged on the scene, and novel technologies and processes can be applied to enhance transparency and confidence in compliance.

Selective adoption of elements considered by the AHG

The mischaracterisation of the AHG’s mandate need not necessarily frustrate Russia’s ambitions, because the proposal excludes the most contentious topic from consideration: verification, and its associated concepts of routine and challenge inspections. This leaves two domains in the 1994 AHG mandate for future consideration: enhancement of confidence building and transparency (if viewed in the context of confidence-building measures (CBMs) and national implementation), and implementation of Article X of the BTWC (on international cooperation, technology transfers and scientific exchanges for peaceful purposes). A third domain has limited bearing on this discussion, because definitions and criteria serve the verification modalities. The two broad issue areas that Moscow proposes for the future protocol discussions unsurprisingly also feature among the intersessional themes selected over the past 10 years.

Despite the call to use the 1994 mandate as starting point, the discussion note repeatedly reminds the reader of the draft protocol under consideration by the AHG. It is not just the sprinkling of certain terminology (which was unavoidable in order to kindle interest among certain members of the Non-Aligned Movement, NAM), but also the references to an international organisation, which in the late 1990s people informally referred to as the OPBW (after the Organisation for the Prohibition of Chemical Weapons, or OPCW). One concrete element drawn from the draft protocol is the Cooperation Committee, which was an organ envisaged to focus on Article X implementation. Other roles proposed for the OPBW are investigations of alleged BW use, the maintenance of capacity to assist with investigations of suspicious disease outbreaks, and the administration of assistance and protection against BW. It would also assume administrative responsibilities of the current ISU (see below). As in the 1990s, the OPCW still serves as an example. A Conference of States Parties and an Executive Council would make up the key decision making bodies, while an equivalent of the OPCW’s Scientific Advisory Board would monitor and report on science and technology developments.

The deliberate omission of verification machinery makes for a strange, if not awkward institutional set up. In many respects, the proposed OPBW would be an enhanced and enlarged ISU, weighted towards international cooperation and assistance (which make up a single division within the OPCW) and supplemented with networks of certified laboratories and qualified national experts to be called upon for investigations.

Furthermore, proposed investigations of alleged use or suspicious outbreaks of disease are initiated by the affected state party and conducted on its territory only. Although the Russian note does not clarify the procedure’s relationship to the UN Secretary-General’s mechanism to investigate alleged use of chemical and biological weapons (which was used last year following repeated allegations of chemical warfare in Syria), the proposal not only appears a considerably weaker version of that mechanism, it also risks undermining it. Under the UN Secretary-General’s mechanism, any state can request an investigation of alleged use within the borders of another state. This is of particular importance if the site of the incident is no longer under government control or in internal wars involving insurgent forces.

The OPBW, as proposed, could never acquire the OPCW’s high level of competence and expertise with regard to investigations, if only because of the absence of systematic, advanced training of an international (rather than multinational) inspectorate. Two key ingredients of the OPCW’s effectiveness in supporting the UN Secretary-General’s mechanism and its own investigations after Syria became a party to the Chemical Weapons Convention (CWC) are the development and adherence of its staff to rigorous operational procedures and the maintenance of an autonomous internal chain of command. Both aspects have contributed significantly to the integrity of the investigations and findings.

Flexibility about topics

Russia honed its proposal carefully to avoid death on delivery. Conscious of political pitfalls, the note omits those elements, such as verification, that would have run into an unreserved American no. At the same time it lists a set of issues important to the West under discussion in the intersessional meetings. And it caters to the desire of developing countries to enhance international cooperation for peaceful purposes. Here too, however, Moscow inserted elements the West is happy to promote, such as preventing, detecting and responding to disease outbreaks, or building capacity in biorisk management. The OPBW would be constructed around those tasks. Perhaps the greatest surprise in the note is the relative emphasis on investigations of alleged use of biological weapons and toxins, and of suspicious outbreaks of disease.

During his presentation, the Russian delegate insisted several times that generation of the broadest possible appeal was a key consideration in the crafting of the note. When questioned about whether he considered particular issues riper for negotiation or the possibility of a modular approach to strengthening the BTWC, he responded that the proposed package can be changed and that other elements can be added to it.

Relationship between BTWC and Protocol

Two sentences in the Russian discussion note point to the envisaged relationship between the BTWC and the proposed protocol, and as a natural consequence, between the ISU and the OPBW:

One of the advantages of such an approach to the Protocol is that it does not require all States Parties to become Parties to it. This Protocol will constitute a pooling of resources for mutually beneficial aims for states that choose to become parties to it. (Emphasis added)

By presenting adhesion to the protocol as a voluntary choice and omitting a desire to universality, Moscow describes a problematic relationship between the disarmament treaty and the instrument that is supposed to strengthen it. First, it will create a two-tiered system of rights and obligations. For instance, would the resources and capacities to assist parties to the protocol in cases of emergencies be made available to all parties to the BTWC? If affirmative, how could a non-party to the protocol apply for such assistance? And, if such a mechanism were to be devised, where is the incentive for a party to the BTWC to sign up to the protocol?

Second, the proposal as it stands would create two separate disarmament regimes, each of which will tend to develop independently. Without information about the conditions that will trigger entry into force of the protocol (e.g., minimum number of BTWC states parties that must ratify it; minimum time to prepare for its entry into force, etc.), formulating sensible scenarios about the early stages of protocol development is difficult. History teaches us that the absence of particular countries during the first months after the CWC entered into force affected  the course plotted in the first meetings of the Conference of the States Parties. In other words, a protocol that is neither legally nor politically firmly bolted to the BTWC could quickly move along a different trajectory, cause confusion about obligations and compliance expectations, and undermine existing mechanisms (such as the UN Secretary-General’s tool to investigate alleged CBW use, or a different status of the CBMs under the respective treaty arrangements).

Similar questions about the relationship of the OPBW to the ISU abound. The Russian text specifies that the new international organisation serves the protocol only. As such the scenario does not assume that the OPBW will subsume the ISU, even if only as a subunit to serve the BTWC states parties who have not joined the protocol.

The ISU is, as its name indicates, an implementation support unit without an executive council or a conference of states parties. It is therefore not a source of decision making. If, as the Russian proposal suggests, the OPBW has autonomous decision-making bodies then an additional question arises about the relationship of their decisions and those taken by the community of states parties convening in review or special conferences. Who defines the contours of the decision-making capacity of the other body, lest that they—as mentioned earlier— embark on different trajectories?

The Russian discussion note does not indicate whether the OPBW would be embedded in the UN Office for Disarmament Affairs (UNODA) like the ISU, or whether it would be an independent organism outside of the UN structure like the OPCW. Assuming the latter preference, a real risk exists that an ISU serving only those BTWC parties that have not become a member of the OPBW will become orphaned. Indeed, would budget-conscious governments wish to pay for two different structures serving a single disarmament treaty?

 Political context of the proposal

Anybody vaguely familiar with the AHG negotiations knows that the USA remains adamantly opposed to any initiative that might revive the Protocol in whole or part. As a US  delegation member noted at one point during the MX, any legally binding agreement is out of the question. The V-word—verification—is absolutely taboo. An initiative at the 7th Review Conference (2011) to reflect on the meaning of ‘compliance’ and how states could demonstrate compliance proposed by Australia, Japan and New Zealand was stillborn. A follow-on move at the 2012 MSP—this time with the additional endorsements from Canada and Switzerland—sought to link reflection on ‘compliance’ to the current intersessional process’s standing agenda item on strengthening national implementation for 2013. General silence, a consequence of quiet US diplomatic pressure. When a Belgian delegate dared to make a vague reference to the concept at last year’s MSP, the US shot down the trial balloon faster than an Iron Dome interceptor.

A swelling chorus of frustration is meeting Washington’s obstinance, not just from some NAM members (who must score some cheap points without offering any alternative), but also increasingly from members of the Western European and Others Group (WEOG) and other friends. The Russian proposal taps into this dissatisfaction, but avoids the most obvious pitfalls. Upon deeper consideration, the anticipatory concessions to the USA and its allies are what is not included in the text, the benchmark being the Russian official’s comment in response to a question that Moscow’s basic position remains the full compliance protocol as it was under consideration more than a decade ago.

Even bearing this context in mind, the final section of the discussion remains an oddity. Instead of simply not listing what is not on offer, it explicitly draws attention to the absence of routine and challenge inspections as disadvantages, stating that they are ‘reflective of prevailing political realities’. The discussion note is the result of careful preparation over several months by the Russian Foreign Ministry. This diplomatic non-paper must have been approved by different government agencies and institutions. So the question must be posed whether any degree of intrusive verification is actually palatable to them? After all, Russia was not exactly the greatest champion of the draft protocol under negotiation in the AHG until it became clear that Washington was going to block the document. Several countries that offered (cautious) backing to the Russian initiative at the side event also flip-flopped in the spring of 2001.

Forward is the way to go

Moscow’s initiative will not vanish into thin air. Three scenarios could unfold, two of which are fraught with danger: the USA remains inflexible with regard to future options for the BTWC, the Russian text becomes the basis for reflection and future discussions, and the international community starts constructive thinking on options based on current and predictable realities.

An undercurrent pressuring for more substantive discussions on core disarmament elements has been rising since the 2011 Review Conference. The opening statements by multiple countries produced a tangible sense that lest the USA wants to avoid isolation, it might have to budge on issues such as compliance or enhanced transparency by 2016. With the Russian discussion note the dissatisfaction with the intersessional process in its current form broke the surface. States will have to react one way or another. If the USA were to refuse discussion on the points raised by Russia or stymie significant change in the selection of topics for the next intersessional process, it may block consensus on a variety of issues at the 8th Review Conference. A crisis not unlike the one in 2001 would definitely be among the possible outcomes. It would certainly saddle President Barack Obama with a legacy of failed Nobel Peace Prize laureate as he prepares to leave the White House.

The second scenario concerns the adoption of the Russian discussion note as basis for fresh discussions on a supplementary protocol and an OPBW. Here the biggest potential problem is Moscow’s stated willingness to consider additional topics. Parties to the BTWC can be expected to haggle to place preferred topics on the agenda. The net outcome would be that states either have to compromise on core positions to allow the start or continuation of negotiations. Or they refuse to make concessions, in which case the BTWC will be put back in limbo.

The third—and hopeful—scenario is that states reflect on their security expectations from the BTWC and  take the opportunity offered by the Russian initiative to reflect on new possibilities to enhance transparency and generate confidence in compliance, taking into account all the fresh opportunities offered by new technologies and past efforts to increase stakeholdership of many types of actors in the treaty.

The Russian proposal presents risks and offers opportunities. It is up to the states parties to seize the opportunities.

The banalisation of tear gas

I am not the only person who is concerned by the banalisation of tear gas as a riot control agent. Over the past few years, the intensity with which such agents have been used has increased markedly, to the point that whole sections of cities now routinely become saturated with the toxic chemicals. In particular Michael Crowley of Bradford University’s Non-Lethal Weapons Project has published studies on the fast technological development and growing global markets of riot control agents and their delivery systems: one in collaboration with the Omega Research Foundation, and one, co-authored with Dana Perkins, then expert of the 1540 Committee, for the Biochemical Security 2030 Project, University of Bath. Likewise, the Physicians for Human Rights issued a report in 2012 on the Bahrain government’s indiscriminate use of tear gas, and in 2013 another one on tear gas excesses in Turkey.

The recent massive use of tear gas by a highly militarised local police force to quell riots in Ferguson, Missouri, has drawn renewed attention to a weapon that the Chemical Weapons Convention bans as a tool of warfare.

Anna Feigenbaum has just published a historical overview of tear gas in The Atlantic, starting with the fist use of a chemical weapon by the French in World War 1 exactly 100 years ago this month.

Perhaps most striking is her compilation and mapping of global tear gas use during 2013 (my screenshot):

20140817 A Year in Mass Tear GassingA PDF printout of the incidents she has listed runs for 19 pages.

Alas, if a riot control agent is used as a tool for law enforcement or domestic riot control purposes, then the Chemical Weapons Convention does not consider it as a chemical weapon and therefore falls outside its scope of application.

 

Gradually making sense of Syria’s CW declarations

Since my last update on the elimination of Syria’s chemical weapon (CW) capacities in May, all precursor chemicals have finally left the country. Some have been shipped to facilities in Finland and the USA, where they are in the process of being destroyed. The United Kingdom meanwhile completed the destruction of 190 tonnes of chemicals at an incinerator in Ellesmere Port.

As of 7 August, 74.2% of Syria’s entire stockpile of chemical warfare agent precursors have been destroyed. Other chemicals are meanwhile being neutralised on board of the US vessel Cape Ray in the Mediterranean, and the resulting reaction mass will eventually be commercially incinerated too.

The Organisation for the Prohibition of Chemical Weapons (OPCW) is gradually slipping off the radar screen of international media. The huge pressure of safely evacuating the precursor chemicals from the war-torn country now removed, the organisation can slowly return to its more familiar role in the background of international politics: monitoring compliance with the Chemical Weapons Convention (CWC) and resolving any outstanding issues. Syria will increasingly become more integrated as a ‘normal’ member of the OPCW. This, however, does not mean that the OPCW will relax its efforts to achieve full accounting of its chemical warfare programmes, clarification of allegations of CW use, or complete destruction of all relevant declared facilities. Syria’s recurring amendments to its initial declaration of 23 October 2013 demonstrate the grinding, but nonetheless steady progress the OPCW is making.

Two new elements (at least to outsiders) have surfaced over the past couple of weeks: Syria’s presentation of a destruction plan for abandoned chemical weapons (ACW) and the declaration of a CW production facility dedicated to ricin manufacture.

Re-hexamination of Syria’s sarin

The UN Secretary-General’s latest monthly progress report on the elimination of Syria’s chemical warfare capabilities refers to Syria’s submission on 14 July of a destruction plan for two sarin-filled munitions. Syria denies ownership of these CW and has therefore declared them as ACW.

The two munitions were recovered after the CW attack at Jobar, an eastern suburb of Damascus, on 24 August 2013 (i.e., three days after the Ghouta chemical attacks). Four days later, Syria notified the UN Secretary General of the use of an improvised explosive device (IED) releasing a foul and strange odour. The UN team investigating alleged CW use visited the site on 29 September. It was unable to examine the place of impact or recover munition fragments, because mine clearing operations had completely corrupted the surroundings. Syrian officials handed over IED fragments and contaminated soil samples, which they claimed came from the incident site. For obvious reasons, the UN team could not certify their chain of custody.

According to the Final Report by the UN Mission (p. 65), the investigative team ‘was also presented with two metal canisters discovered by Government soldiers during the offensive operations in Jobar on 25 August 2013 in the immediate aftermath of the incident and in close vicinity of the site of the alleged incident’. These were said to be identical to ones used in the chemical incident the day before. Made of steel sheeting of 1mm thickness, the plates were bent and welded together manually at a sub-industrial standard. The canisters nevertheless revealed a high degree of expertise with the electric welding process. The UN investigators were also able to establish that ‘a detonator and a coiling of the detonating cord, acting as a booster, composed the fire train, electrically initiated’. They had an internal fill capacity of up to approximately 4 litres (see figure below). The two metal canisters are the ACW Syria declared to the OPCW. (This description corrects the suggestion in my posting of 26 May that the two ACW were Volcano rockets. The claim that Syria did not declare any Volcano rockets as CW still stands, however.)

Syria CW IED - UN investigation

Analysis of their contents by the OPCW confirmed sarin as their payload. Moreover, the filling displayed all the characteristics of sarin as produced by the Syrian government, the principal telltale sign being the presence of hexamine (hexamethylenetetramine). Since its presence in samples was first reported by the UN investigative team last September in relation to the Ghouta attack and the OPCW later released that Syria had declared 80 metric tonnes of the chemical in connection with sarin production, there has been furious speculation as to its exact role. In a recent analysis focussing explicitly on the role of hexamine, UK-based CW expert Daniel Kaszeta argued that the Syrians used the compound as an acid scavenger in the final reaction of their rather unique sarin production process. Reacting DF (methylphosphonyl difluoride) with isopropanol yields sarin and hydrofluoric acid, the latter being a toxic and extremely corrosive gas that would have quickly damaged the production and agent filling installations. Hexamine binds this acid, and does so more efficiently than other amino compounds.

However, recent discussions with officials from some Western states who are involved in the analysis of Syria’s declarations indicate two other roles of hexamine, namely as catalyst and stabiliser. The catalyst function is probably closely tied to the acid scrubber role. In an e-mail exchange today, Ralf Trapp, a chemist and consultant to the OPCW, confirmed that hexamine increases the yield of the chemical reaction by pulling the equilibrium between the precursors and reaction product (sarin) in favour of the latter. As a result, the sarin concentration receives a significant boost, possibly up to 60%. This degree of purity is considerably higher than the yields achieved by Iraq in the 1980s.

As a stabiliser, hexamine probably allowed the Syrians to store freshly produced sarin for days, if not several weeks. This understanding is more compatible with views before the civil war that Syria’s CW served strategic deterrence. Munitions declared to the OPCW last autumn also seem to validate those views. Initiating the final reaction shortly before use, as was the case in Iraq, would have undermined this doctrinal role. The insight also raises fresh questions about the curious White House claim last August that the United States had observed Syrian preparations for three days prior to the Ghouta attacks.

Strictly speaking, the chemical analysis of the sarin in the two ACW confirms beyond any doubt that the nerve agent was produced by means of the same process as the one used by the Syrian government. The distinctive signature, however, cannot exclude the possibility that insurgents might have captured some CW. Western officials tend not to give much credence to this hypothesis.

Castor beans: cancer research, castor oil, or ricin?

The latest monthly progress report also reveals that on 14 July Syria submitted yet another amendment to its initial declaration. The document lists a dedicated ricin production plant. As a weapon the toxin is banned under both the Biological and Toxin Weapons Convention (BTWC) and the CWC. The CWC requires the verified destruction of CW production facilities, but the amendment claims that it is located in an area not under government control. It also states that the entire quantity of ricin produced was eliminated prior to the entry into force of the CWC for Syria. If correct, then Syria need not declare its past toxin weapon holding. CW disarmament in Syria, however, is hardly a normal operation. As with its claimed destruction of 200 tonnes of mustard agent early in 2013, the OPCW must investigate those statements to ascertain that the country is not hiding any residual CW.

This progress report was the first to publicly mention ricin production. Last April concerns about the toxin had already filtered out of the United Nations, but they have thus far remained a relatively low-level matter at the OPCW. This was in part a consequence of the high-priority preoccupation with getting the precursor chemicals out of Syria, and in part because nothing seems to indicate that the country presently has ricin weapons. Questions remain nonetheless.

Syria apparently cultivated castor oil plants (Ricinus communis) on several tracts the size of football fields. In itself, this is no so unusual as the oil makes for an excellent lubricant for heavy engines, such as those in military lorries. However, Syria’s initial explanation referred to cancer research and treatment, which was wholly implausible in view of the minute quantities of ricin required for research. Castor oil also lacks any medicinal value to cure cancer. It was used to deliver some chemotherapy drugs to tumours, but occasional side effects, such as allergic reactions, have led to the adoption of alternatives. Starting in the 1980s, Texas Tech University and Texas Tech University Health Sciences Center conducted long-term research on the oncological application of genetically modified ricin to kill diseased cells. According to a press release of October 1998, ‘just two acres of land, given the right castor seed, could produce enough ricin to meet the world’s pharmaceutical supply need for cancer treatment’. Ricin is also being investigated in relation to neurological degenerative disorders and in the treatment of intractable painful neuropathies.  It is rather hard to think of Syria as a global supplier of medicinal ricin many times over.

This leaves the question of ricin as a weapon. Ricin is an instrument of choice for assassinations, as befell Bulgarian dissident writer Georgi Markov in London in 1978. More recently clumsy attempts to send ricin-filled letters to hated persons, including President Barack Obama, have also put the spotlight on the agent. Since the First World War many states considered ricin as a possible tool of warfare, but they have never incorporated it as a standard agent into their chemical and biological warfare arsenals. Despite the military attractiveness of its toxicity, the toxin poses several serious problems in relation to large-scale production, longer-term storage (unless turned into a solid), and dissemination techniques. While none of these problems are insurmountable, the net effect is that the agent is more cumbersome to weaponise or less effective on the battlefield than alternatives.

Right now the reason behind Syria’s declaration of a CW production facility exclusively dedicated to ricin manufacture remains murky. On the one hand, in view of the many publicly available accounts describing the many difficulties of producing and especially storing the toxin in free state for longer periods of time, it almost seems implausible that Syria would have embarked on a major ricin weapon programme. Interestingly, several Western officials I recently spoke to tend to discount public Israeli reports on Syria’s ricin programme. The annual US State Department report on arms control treaty compliance for 2014 dropped the reference to ricin-based biological weapons in the BTWC section and does not mention the toxin in the separate CWC compliance report. The 2013 treaty compliance document still stated: ‘In 2004, Israel’s Intelligence and Terrorism Information Center said in a report on Syria that the Scientific Studies and Research Center had been developing ricin-based biological weapons’.

On the other hand, if the Syrian factory was indeed dedicated to the production of oil or lubricants, the possibility exists that it used a cold hydraulic pressing technique, in which case 1–5% by weight of ricin might remain in the resulting mash. A fact sheet on ricin by the OPCW Science Advisory Board (SAB) released in February 2014 notes that castor oil production plants are not subject to Schedule 1 inspections under Article VI of the CWC. The SAB therefore recommended that the Director-General encourage National Authorities in producing countries to promote hot pressing and other techniques that ensure inactivation of residual ricin in the waste mash. In other words, the Syrian amendment might reflect a compromise with the OPCW to remove any ambiguity about the purpose of the ricin resulting from a particular production process in view of the need for absolute certainty that all aspects of the country’s CW programme have been eliminated. A future oil-extraction plant using a process that inactivates residual ricin could then be constructed without the need for long-term verification modalities for that installation.

A possible explanation for the ricin factory declaration for sure, but more details are required to confirm the scenario. To be continued.

And the destruction of mustard agent?

As I reported in May, OPCW inspectors were looking into Syria’s claim earlier this year that it had destroyed some 200 tonnes of mustard agent in the spring of 2013. They are still trying to obtain further documentation substantiating these destruction operations. Onsite inspections of the disposal sites are still pending before this particular file can be closed.

Enhancing BTWC Compliance – Workshop Report

Jean Pascal ZANDERS
Senior Research Associate
Fondation pour la recherche stratégique

WORKSHOP REPORT

Enhancing compliance of the BTWC
through national implementation and other means

Brussels, 24 April 2014

(PDF version)

I.    Participation

The workshop, organised by the EU Non-Proliferation Consortium in cooperation with the European External Action Service (EEAS), was held in Brussels on 24 April 2014. Its purpose was to have an in-depth brainstorming session on the future of the Biological and Toxin Weapons Convention (BTWC) with officials from EU Member States.

The event was the 1st Ad Hoc Seminar to be organised under the new Council Decision 014/129/CFSP of 10 March 2014 supporting the continued activities of the EU Non-Proliferation Consortium.

Representatives, mostly delegates attending the CODUN working party, participated from Belgium, Cyprus, the Czech Republic, Denmark, France, Hungary, Ireland, Latvia, Lithuania, The Netherlands, Poland, Portugal, Romania, Slovakia, Spain, and the United Kingdom, as well as the EEAS.

Invited non-governmental expert speakers were nationals from Belgium, France, Ireland, Italy and the United Kingdom.

II.    Meeting presentations

Dr Jean Pascal Zanders (Owner, The Trench and Senior Research Associate, Fondation pour la recherche stratégique) welcomed the participants on behalf of the EU Non-Proliferation Consortium and briefly outlined the purpose of the workshop.

Ambassador Jacek Bylica (Special Envoy on Non-proliferation and Disarmament, EEAS) thanked the EU Non-Proliferation Consortium and the Fondation pour la recherche stratégique for organising the event. He noted its timeliness as the EU Members and the EEAS start reflecting on the 8th Review Conference of the BTWC in 2016 and must consider the renewal of the EU’s support to the BTWC with the possible negotiation and adoption of  a new Council Decision before the end of 2014. In the EU Common Position adopted ahead of the 7th Review Conference (2011), the EU Member States identified three guiding priorities to further strengthen the BTWC: (i) supporting national implementation, (ii) building confidence in compliance, and (iii) promoting universality. Assessment of the 7th Review Conference two and a half years later yields sobering conclusions. Despite its reaffirmation of important prohibitions and obligations, deep divisions among states parties touch upon basic notions beyond the BTWC. These include fundamental ideas on governance, sovereignty and justice. The divisions overshadow the common interests that might, or should, exist in preventing biological warfare. Moreover, since the failure of a legally binding protocol to the BTWC in 2001, the topic of compliance has been highly contentious within the regime. These disputes have imposed limitations on the current intersessional process, which in turn affect chances for progress prior to 2016.

To contribute to a successful outcome of the 8th Review Conference, the EU should continue to support the BTWC both politically and financially. Four Council Decisions (in 2006, 2008, and 2012 in direct support of the BTWC-ISU activities and in 2008 in support of WHO activities in the areas of bio-safety and bio-security) have enabled the EU to contribute to the reinforcement of the BTWC. Through the BioWeapons Prevention Project (BWPP) and the BTWC Implementation Support Unit (ISU) it has convened regional universalisation seminars and assisted countries with their drafting and national implementation of legislation or preparation of their national submissions under the agreed confidence-building measures (CBMs). A sponsorship programme has enabled developing countries to attend BTWC meetings and workshops. Since the commencement of activities in 2006, 14 states have joined the convention, annual CBM submissions have increased from 51 to 69 states, including 19 states that have submitted their first CBM return. Despite the EU’s contribution to these achievements, questions nevertheless remain about what else the EU could do to strengthen compliance. In particular, how can the EU build alliances with non-EU countries, and members of the Non-Aligned Movement (NAM) in particular, to further the goal of a more effective compliance system for the BTWC and to enhance actual compliance?

Dr Jean Pascal Zanders recalled that in the summer of 2001 the Ad Hoc Group (AHG) suspended negotiations on a legally binding protocol to the BTWC, which would have included compliance and verification measures. At the end of the same year, the 5th Review Conference was suspended after the US sought to terminate the AHG’s mandate. After its resumption a year later, the 5th Review Conference adopted a process of annual expert and state party meetings in between review conferences (and renewed the process at the 2006 and 2011 sessions). Although the decisions salvaged the convention, they have contributed to a de facto acceptance of the BTWC’s ‘unverifiability’. Moreover, they resulted in a significant shift of emphasis from the international level to the levels of national and individual responsibilities to prevent biological weapons.

The EU, meanwhile, remains committed to effective mechanisms to build confidence in compliance with the BTWC. It believes that this can be achieved by means of declarations, consultations and on-site activities, representing increasing levels of transparency and scrutiny, as well as by information exchange and review during the intersessional process. While accepting that no international consensus on verification exists, it is prepared to work towards identifying options that could achieve similar goals. The EU also considers national implementation as a cornerstone of the BTWC, and therefore seeks to enhance national legislation, coordination among national stakeholders and regional and sub-regional cooperation; and implementation of appropriate biosafety and biosecurity management standards for life science institutions, among other things.

Emphasis on compliance raises a number of interesting questions. It definitely recognises the responsibilities of states parties, but raises questions whether all obligations—treaty articles and decisions taken at review conferences— are viewed on an equal footing. Demonstration of compliance is a burden that rests entirely on the state, but the intersessional processes have identified and recognised responsibilities by other stakeholders. States have adopted coercive measures via national legislation in order to prevent them from violating the BTWC prohibitions, but also try to coopt them into the BTWC goals.

The combination of a widening range of issue areas that fall under the compliance umbrella and multilevel stakeholdership (sub-national, international and transnational) raise questions as to whether any consensus exists about the ‘compliance’ concept, who is to comply with what, who is to judge compliance, which tools exist for assessing BTWC compliance, and what the consequences of a judgement of non-compliance would entail? One of the problems in addressing these issues is that the role of the state in an increasingly multilayered, polycentric global system is diminishing fast. Notwithstanding, many states reject formal governance responsibilities for non-state actors under BTWC.

Looking forward to the 2016 Review Conference, the EU faces questions about the centrality of core disarmament issues in the future development of the BTWC, the instruments it is willing to consider to achieve those disarmament goals, and its strategies to promote its views among other parties to the convention.

In her comments to Zanders’ presentation, Ms Judit Körömi (Special Representative of the Foreign Minister for Arms Control, Disarmament and Non-Proliferation, Hungary, and Chair of the 2013 BTWC intersessional programme) noted that during the intersessional process positions have moved little, and as a consequence virtually no room for any consensus exists. Specifically with regard to compliance, verification and CBMs, she observed that the most vocal states hold diametrically opposing views as to whether they should be binding or voluntary. This affects their utility as a tool in building confidence in compliance. She said that unless a strong majority position either way emerges, there may be little chance of making the CBM mechanism more effective or increasing state party participation. At the 7th Review Conference several parties expressed interest in exploring the ‘compliance’ concept further and wished to have the topic included in the current intersessional meetings. NAM members, however, effectively blocked the option. She therefore wondered whether its consideration should not be moved to informal sessions, but in the absence of US leadership on this issue, which country is willing to take the initiative?

Looking forward to the 8th Review Conference, Körömi believed that deep reflection is required on the state of scientific and technological developments and on how they may affect the BTWC in future. People should similarly reflect on whether the regime is best served by legally-binding measures only or whether certain aspects could be better served by means of alternative approaches. Reflection is also required on the types of relationship states parties are willing to build with stakeholder communities and their implications for the nature of interactions with them. And last, but not least, she raised the question about resources states are willing to make available to prevent the weaponisation of disease.

Dr James Revill (Research Fellow, Harvard Sussex Program) addressed the question of what verification of the BTWC may mean today. Compliance with the convention is complicated by ambiguities of certain obligations, deficiencies in national capacities to implement those obligations, and fast changing contexts. Verification increases the levels of assurance that states parties are complying with the BTWC prohibitions and obligations. In addition, the exercise of verification would force violators to hide their illicit activities (e.g., by embedding them in licit programmes) and cover up their purposes, neither of which is easy. The violator could thus be forced to give up its BW programme or bury its activities even deeper, which would make certain aspects even more anomalous and therefore more visible.

While accepting that the draft Protocol to the BTWC should be assessed for elements that may still be useful today, Revill rejected positions arguing that the document offers the only way to future verification. Any consideration of options must move beyond current fractious rhetoric. Innovative approaches are necessary, but at present any concrete suggestion meets with opposition from (groups of) states parties resisting any form of enhanced transparency or compliance monitoring, let alone verification. He presented a possible modular approach starting with enhancements to compliance with those articles whose implementation are the least controversial and using these as building blocks to gradually move into other areas of the treaty until all dimensions are covered. Revill also envisaged a gradual expansion of the toolbox, beginning with information exchanges (including CBMs) and moving on to visits, declarations, inspections, and ultimately the creation of an international organisation. His proposed starting point was the theme of science and technology, which easily reaches into the BTWC’s core prohibitions as well as the need for international cooperation under Article X.

Identifying and assessing options that may contribute to compliance assessment and verification will be key to prepare for the 2016 Review Conference and devise a plan to move forward. Revill left open whether a concrete, incremental plan of action should be pursued within the consensus-based framework of the BTWC or whether a subgroup of states parties should go ahead irrespective of opposition from certain quarters.

Dr Elisande Nexon (Research Fellow, Fondation pour la recherche stratégique) introduced the French proposal for a peer review mechanism as an example of voluntary exchanges of information among parties to the BTWC. She noted that several states and international organisations already operate various types of peer review mechanisms covering different fields. In international security, peer review activities can contribute to compliance assessment, confidence building, identification of options for improvement, performance assessments, promoting cooperation, quality control, sharing experiences and best practices, and transparency. Similar types of exercises are or have been undertaken by organisations such as the International Atomic Energy Agency (IAEA), the EU with respect to national export control systems for dual use goods and by the UN Office for Disarmament Affairs in the context of UN Security Council Resolution 1540. Nexon, however, noted the need for tailored approaches as each peer review activity serves different goals, covers different scopes, and therefore requires adapted methodologies.

France developed a peer review proposal for the BTWC with a view of strengthening confidence among parties, enhancing national implementation of the convention and fostering the sharing of experiences and best practices. The exercise is voluntary and respects national sovereignty. The state receiving national experts from other countries freely determines the exercise themes. France hosted a pilot exercise in December 2013, which included briefings and two onsite visits. The final report and lessons learned will be presented in the near future. Meanwhile, the general sense is that the proposed peer review mechanism, while not a substitute for verification, can contribute to the enhancement of different areas of BTWC implementation, generate transparency about the national efforts, and create opportunities of international cooperation and assistance.

Dr Mirko Sossai (Rome University 3) analysed the contribution of national implementation approaches to compliance enhancement. Like Revill, he noted that with respect to compliance the BTWC text is ambiguous and that state party compliance can be affected by lack of resources and changes in circumstances. However, he added that lack of compliance can also be the consequence of indifference or a deliberate choice.

He then reviewed the various possible implementation measures and strategies as identified in the final document of the 7th Review Conference (2011).

An interesting angle of the national implementation activities is their broad focus on prevention. To achieve this goal they reach into adjacent areas of biosecurity and -safety, industry standards (e.g., biosafety or transport of dangerous goods), technology transfer controls via national export regulations for dual-use goods, the implementation of UN Security Council resolution 1540, international health regulations and disease surveillance  via the World Health Organisation (WHO), or the possible involvement of the World Customs Organisation to achieve common nomenclature on biological dual-use items and a framework of standards.
In the end, important inconsistencies and gaps remain regarding national implementation. This can be the consequence of lacking inter-agency and inter-departmental coordination and cooperation. There is a big need for both national and international oversight or authority.

Dr Caitríona McLeish (Senior Research Fellow, Harvard Sussex Program) looked at the future of the BTWC from the perspective of multi-stakeholder governance. Governance is built on a network system that develops a range of inclusive and multi-layered activities to achieve a particular outcome. It departs from the premise that no single actor has all of the knowledge and information required to solve complex dynamic and diversified issues, possesses sufficient overview to make the application of needed instruments effective, and lacks potential to dominate unilaterally. ‘Multi-stakeholder governance’ therefore refers to the multiplicity of actors within that network, each of whom possesses knowledge or expertise to contribute to the management of a particular issue area. In practice, the shift towards governance with regard to the BTWC is already reflected in new activities and work methodologies that include open meetings, hearing statements, panel discussions, the maintenance of the ‘Think Zone’ by the ISU ahead of and during review conference meetings.

McLeish presented compliance as a process consisting of gathering information, analysing that information, and judgments based on that information and analysis. The first two stages are the ones where stakeholders other than governments can make useful contributions. Such stakeholders can be information providers with regard to work practices, oversight and work direction, not just to their own governments, but also to their peers in other countries or as part of various scientific, commercial or industrial transnational processes. Independent analysts and organisations can also contribute to the analysis of information, and governments may draw on their conclusions when voicing non-compliance concerns. Civil society actors can also express their own concerns about certain developments that may erode the standing of the BTWC or may promote the legitimacy of the disarmament treaty among their constituents. When technical problems arise, non-state stakeholders can draw on their epistemic communities to frame possible solutions, even when the political environment is momentarily not conducive to their discussion or resolution. This option could be useful to explore the theme of verification and to design and test certain methodologies.

She concluded by stating that states parties should assume that contributions from non-governmental stakeholders will be valuable, They should therefore not only encourage their wider participation in treaty meetings, but also use the opportunity to explore and discuss ideas in the politically neutral space outside of Geneva. They should use the existing networks and draw on the information from those stakeholders for their work and statements. Perhaps parties to the BTWC should consider to create or nurture a study group format in which government representatives and civil society stakeholders can come together to explore a particular theme in their personal capacities, but notwithstanding draw on their technical credentials.

In her closing address, Ms Clara Ganslandt (Head of Division Weapons of Mass Destruction, Conventional Weapons and Space, EEAS) thanked all participants and speakers for their contributions to the debate. The EEAS, the EU member states and European civil society all have stakes in the future of the BTWC. She appreciated the exploration of various ways to enhance transparency, and thus to demonstrate compliance. Furthermore, discussions touched upon the many synergies with other international instruments and organisations, such as the WHO and UN Security Council resolution 1540. They point to several alternatives to verification, which may lead to concrete action. The ideas put forward will not only help framing an EU strategic vision for the 8th Review Conference in 2016, but also inform concrete projects for the next Council Decision in support of the BTWC.

Mr Camille Grand (Director, Fondation pour la recherche stratégique and Chairman, EU Non-proliferation Consortium) closed the workshop by thanking all participants for their input into the discussions.

III. Discussion

On the general way ahead for the BTWC

Participants generally agreed that the BTWC is a difficult treaty to make effective. Today a fundamental blockage exists; the core question is how to overcome it? One way of looking at the problem is to assess the cost of doing nothing. Presently that cost is nothing, as a consequence of which all proposed measures will tend to remain voluntary. The wide divergencies in views on how to take the convention forward constrains possible action, in effect leaving national implementation as the sole option.

With regard to compliance, questions exceed answers at present, making the adoption of possible measures all but impossible. Yet, at the same time it is important to frame the goals in order to engage other countries. The core issues concerning monitoring and transparency have not changed over the past few decades, but the nature of the threats have. Hence, transparency becomes a critical ingredient for any future compliance model. While the emergence or banalisation of some technologies and processes have enhanced perceptions of threats, similar developments in monitoring technologies, information sharing and awareness of risks have actually created opportunities for transparency that did not exist one or two decades ago. Ultimately, compliance is about a process and never an end stage. Critical is how the international community could move from identifying some indicators of compliance to concrete measures to demonstrate and assess compliance. Equally important is to identify those useful measures that may enjoy cross-regional consensus.

The majority of states parties are silent in the meetings, raising the question how they may become more involved in the BTWC process. One participant expressed the concern that progress is often incident-driven. While this may increase activity, it is also true that a major event may push development of the treaty into a particular direction to the detriment of other, equally important issues.

On generating transparency about intent

The absence of a clear vision on verification goals actually complicates discussion on verification methodologies. The fact that many BTWC-related discussions and activities take place on different levels raise important questions about what verification should address. National implementation, for instance, takes place within a state, whereas compliance monitoring and assessment address inter-state issues. One participant observed in this context that the BTWC is a catalyst for certain types of activities, rather than their focus. Other participants expressed the need for an international organisation, because inter-state control mechanisms could allow states with malevolent intent to seek out and exploit weaknesses in the system.

Participants saw many benefits of the proposed peer review process, noting in particular its flexibility and the opportunities it gives a host state to demonstrate to other invited parties how it implements the BTWC. However, the process cannot prove compliance. Some workshop participants wondered how states such as the USA, Russia or China can be involved. It was also suggested that the CBM returns could become an important input for the peer review process. One of the key problems with the CBM process is that parties submitting returns never receive any feedback. The proposed peer review process could actually address this anomaly, and thereby contribute to widening participation. The French pilot exercise yielded several ideas for further development, it was noted. The BENELUX countries will also organise a peer review exercise similar to the French proposal. Lessons learned ought to be shared.

A central question remains on how to deal with suspected violations of the BTWC. The treaty does not have its own verification machinery and, in contrast to some other arms control agreements, it does not have civil society constituencies that can bring possible instances of breaches to public attention. Is it possible to build capacity within civil society to fulfill such a role? Plenty of open-source information is available, but the questions remain about what to do with it. Before it can be examined there need to be a clear definition of principles and decisions on what should be explored.

A separate issue is whether stakeholders other than governments will not pursue their particular interests, and whether those private interests might not conflict with those from other entities. However, as one participant remarked, responsibility for the treaty resides with the states parties. While non-governmental stakeholders can contribute to the maintenance of the integrity of the treaty regime, they are no substitutes for governments.

Another series of comments reflected on how universal civil society involvement can be. Some countries are very intolerant towards NGOs or allow them only a limited scope of activity. Their sources of funding—whether by national governments or foreign governments or foundations—may seriously impede their ability to undertake certain tasks. The counterargument was offered that such realities should not prevent the development of basic principles and deployment of certain activities in countries where the NGO community enjoys broader latitude. The core point is that presently certain views are not being challenged when they should be.

On current implementation measures

The current discussions on treaty implementation often lack the qualitative dimension. Too often the question is whether a state is undertaking a particular activity, rather than on how it is undertaking that activity. Many measures are proposed and adopted, but few questions are raised about how they are actually being implemented. Export controls are a case in point: while the so-called ‘catch-all’ principle is beyond question in the EU, there is very little reporting on how it is implemented or enforced in practice. For monitoring purposes it is equally important to get the relevant information on transactions, including their nature and volumes. However, as the Chemical Weapons Convention illustrates, there may be important discrepancies regarding transfer data. Methods and processes need to be continuously assessed in order to ameliorate them.

Some participants noted that originally legal clarity existed about the requirements, but this has diminished as a consequence of scientific, technological and geopolitical advances. In particular, the convergence between biology and chemistry raises the question on how to deal with overlapping national and international regulations. This will affect the BTWC regime in the long term.

On next steps for the EU

It is important for the EU to remain focussed on the core goal of the BTWC, namely to live in a world without biological weapons. However, in the pursuit of that goal, it must realise that it, and the West in general, has become but one voice in a world that is increasingly polycentric. This implies that immediate interests may diverge considerably on any given issue. The EU invests a lot of money and resources in promoting the universality and implementation of the treaty, but it may have to develop a clearer vision on its short and mid-term objectives and strategies to promote them among other states parties. It must also be more proactive in terms of publicising the types of contributions it makes in specific areas to counter prejudices that may exist in certain quarters.

Noting the future challenges the BTWC will face and acknowledging that nobody seems prepared to the lead the discussions on how to address them, one participant wondered whether the EU could not adopt a leadership position, either within or outside the formal BTWC processes. This will most likely be a longer-term endeavour, as fostering new ideas is an incremental process requiring forward thinking in terms of a decade or more.

Other comments related more to maintaining a coherent EU message at BTWC meetings. Especially since the entry into force of the Lisbon Treaty, it has become more difficult for the EU to present common positions, in particular as a consequence of the reduced role of the Presidency and its position as an observer international organisation that is not party to the convention. Therefore, the EU should consider strategy options to present unified positions to the forums and have its members pursue common positions in unison.

1996 ICJ advisory opinion on nuclear weapons: reflections

The Asahi Shimbun (Japan) is publishing a set of  four articles on the Advisory Opinion on the legality of nuclear weapon use in armed conflict issued by the International Court of Justice in 1996.

They include a commentary and interview with former ICJ president Mohammed Bedjaoui, as well as a commentary and interview with former ICJ judge Christopher Weeramantry.

I am not sure whether they make up the total package, but in case of future additions the articles can also be accessed from: http://ajw.asahi.com/tag/NUKE%20JUDGEMENT

 

OPCW announces final CW shipment out of Syria

Announcement to media on last consignment of chemicals leaving Syria
Monday, 23 June 2014

Statement by Ahmet Üzümcü, Director-General OPCW

Just under 9 months ago in October, I addressed you members of the press – in this same place, here in The Hague – to announce the deployment of the first OPCW inspectors to Syria to begin an historic and unprecedented mission. The mission was to destroy the chemical weapons programme of the Syrian Arab Republic.

A major landmark in this mission has been reached today. The last of the remaining chemicals identified for removal from Syria were loaded this afternoon aboard the Danish ship Ark Futura. The ship made its last call at the port of Latakia in what has been a long and patient campaign in support of this international endeavour.

Removing the stockpile of precursor and other chemicals has been a fundamental condition in the programme to eliminate Syria’s chemical weapons programme.

The next stage in this mission is the completion of the maritime operations to deliver the chemicals for destruction at the assigned facility on board the U.S. vessel Cape Ray and at commercial facilities in Finland, Germany, the United Kingdom and the United States of America.

The mission to eliminate Syria’s chemical weapons programme has been a major undertaking marked by an extraordinary international cooperation.

Never before has an entire arsenal of a category of weapons of mass destruction been removed from a country experiencing a state of internal armed conflict. And this has been accomplished within very demanding and tight timeframes.

The mission has seen over 30 countries and European Union committing significant financial and in-kind assistance. This cooperation covered key logistical and transportation requirements, including a complex maritime operation. The collaboration with Member States relating to destruction activities and the provision of equipment and industrial facilities for this purpose is unprecedented in the history of disarmament. I wish to express our profound gratitude to all these States Parties.

This collective endeavour was born here, in The Hague, of a treaty that has more than demonstrated its resilience and responsiveness. Following the Framework Agreement concluded between the Russian Federation and the United States of America, the OPCW was called upon to devise and implement an elaborate programme. Various milestones and interlocking steps for a sequenced elimination and verification were established.

The Executive Council of the OPCW supported by the Secretariat remained fully engaged in its oversight of the implementation of the programme. Some eighteen meetings of the Executive Council have so far taken place at OPCW Headquarters, with numerous rounds of informal meetings and technical consultations in the background.

There were expected and unexpected challenges along the way. But the OPCW and member states have been able to overcome them – both through careful diplomacy and innovative technical solutions.

Although there were delays in the process, the cooperation of the Syrian Arab Republic has been commensurate with the requirements of the decisions.

And, crucially, we were able to count on the invaluable cooperation of the United Nations to provide logistical and security support for our verification effort in Syria through the OPCW-UN Joint Mission.

I take this opportunity to commend the Special Coordinator of the OPCW-UN Joint Mission, Ms Sigrid Kaag, and all those OPCW and UN staff who have participated in this mission. Their dedication and professionalism, in challenging circumstances, have been a key factor in the attainment of the critical progress that we recognise today.

While a major chapter in our endeavours closes today, OPCW’s work in Syria will continue. We hope to conclude soon the clarification of certain aspects of the Syrian declaration and commence the destruction of certain structures that were used as chemical weapons production facilities. Syria’s cooperation with the work of the OPCW Fact Finding Mission will also remain important. The OPCW will continue to engage with Syria to ensure that it is able to fulfil all its obligations under the CWC and the relevant decisions of the Executive Council and UN Security Council resolution 2118 (2013).

On the alleged customary nature of Article VI of the NPT – A Rejoinder to Joyner and Zanders

By Marco Roscini, 5 June 2014

[Marco Roscini, Reader in International Law at the University of Westminster, wrote this rejoinder on Arms Control Law. It is reproduced here with permission, as it forms part of a broader discussion about useful insights for nuclear disarmament to be derived from  chemical and biological weapon disarmament. – Jean Pascal]

Both Dan and Jean-Pascal offer excellent counterarguments in their replies to my blog post on the customary nature of Article VI, and I thank them for this.

After thinking carefully about their comments, I would like to offer some further thoughts.

1) I think that there is no obstacle in principle for a single provision within a treaty to be taken in isolation to establish whether it has become customary international law. The severability of treaty provisions finds support in the Vienna Convention on the Law of Treaties and has been upheld, for instance, in the ICJ Nicaragua Judgment, where the Court examined whether Articles 2(4) and 51 of the Charter reflected customary international law. We could even say that we should sometimes look at whether individual paragraphs within a provision are customary: again, in the Nicaragua case, the ICJ concluded that only the first sentence of Article 51 was a reflection of customary international law but not the second, ie the duty to report the armed reaction in self-defence to the Security Council. True, Article VI is linked to the other pillars of the NPT and is part of that Grand Bargain. But we shouldn’t forget that customary international law has a life of its own, independent from the treaty from which it may have originated: therefore, nothing prevents that only certain provisions of the NPT may have become customary but not others, even though, in the treaty where they were originally contained, they were intended as a package deal.

2) Like Jean-Pascal, I am not sure that the Chemical Weapons Convention is an appropriate analogy with the NPT. Indeed, as Jean-Pascal says, the difference between the NPT and the CWC is that the latter doesn’t distinguish between haves and have-nots. But an even more important difference is that virtually all states parties (and non-parties as well) agree that the use and possession of chemical weapons is unlawful: those states that are suspected of possessing or using them don’t count as contrary practice, as they don’t argue that such situations are lawful, rather they normally deny possession or use (Syria docet) or argue that the chemicals used don’t fall within the definition of the prohibited weapons, therefore confirming the prohibitory rule.

3) Dan is of course correct to say that Article VI formally addresses all NPT states parties. I still think, however, that this provision ‘specially’ affects only those states that possess nuclear weapons, as their position is necessarily different from that of non-nuclear weapon states. The fact that Article VI was what the NNWS asked to the NWS in return for their giving up the right to possess nuclear weapons (as Dan rightly states) demonstrates that this provision was specifically aimed at the NWS. In my view, it’s also impossible for the NNWS to engage in the relevant conduct, ie to give up weapons they don’t possess: they could engage if they acquired nuclear weapons, but that would confirm my argument, ie that the provision only specially affects states once they possess nuclear weapons.

4) I agree with Jean-Pascal that the customary nature of a provision or of a whole treaty doesn’t necessarily depend on how many states have ratified that treaty. Rather, it depends on the attitude of the states not parties in relation to that treaty. I also agree with Sergei Batsanov when he says in his comment to my initial post that we also have to take into account the practice of the several NNWS that accept nuclear weapons on their territory and of those that benefit of the nuclear deterrence umbrella. This practice by NNWS seems to imply an opinio that is difficult to reconcile with the customary nature of Article VI, ie it’s based on the acceptance that certain states may possess nuclear weapons.

To conclude. While I would in principle agree that Article VI, as a treaty provision, may have been breached by the NWS (although doubts about the normativity of this provision remain), I am still not sure that, at this stage, it reflects customary international law. The empirical study wisely advocated by Dan would have to provide evidence of consistent practice and opinio juris in that sense by a sufficiently representative majority of states, including the majority of the specially affected states (as per the North Sea Continental Shelf Judgment).

NPT Article VI and BTWC Article IX

[This contribution appeared orginally in Arms Control Law, and was in reply to a discussion on the blog. Links to the original arguments are included. - Jean Pascal]

This discussion between Marco [Roscini] and Dan [Joyner] on Article VI of the NPT and customary law is instructive.

In this particular case, Marco’s application of the notion to a single article rather than the totality of the treaty puzzles me. I would tend to agree with Dan’s counterpoint. However, Dan then refers to the CWC in its entirety to draw an analogy. In my mind a bit problematic for two reasons:

1. The CWC is a disarmament, rather than a non-proliferation treaty. It means that the weapon category in its entirety is banned and no exeception exists for any state, whether big or small; whether powerful or weak. However, more to the present discussion, as a consequence of the CWC being a disarmament treaty (i.e., going to zero and remaining at zero in the future), the convention is final. It does not have aspirational articles with regard to ambitions not covered by its own text.

2. Article VI of the NPT resembles more of Article IX of the BTWC:

Each State Party to this Convention affirms the recognized objective of effective prohibition of chemical weapons and, to this end, undertakes to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of their development, production and stockpiling and for their destruction, and on appropriate measures concerning equipment and means of delivery specifically designed for the production or use of chemical agents for weapons purposes.

I find it difficult to see how this article could have turned the BTWC into a CW disarmament treaty (as proponents of nuclear disarmament often tend to do with regard to Article VI of the NPT) or how it could reflect on customary law regarding CW, even if considering that most people view the 1925 Geneva Protocol banning the use of chemical and biological weapons as having entered into customary law.

Just like the CWC, the BTWC is also a disarmament treaty and has similiar finality with regard to biological and toxin weapons. Nevertheless, I would argue that the BTWC today, despite having fewer parties than the CWC, fits more firmly into customary law: no state actually claims having BW or maintaining an offensive BW programme. (For example, in an interview in Der Spiegel on 19 January 2009, Bashar al-Assad more than implicitly admitted to CW, but flatly denied BW.) This has important implications from an armament/disarmament perspective: there is no space whatsoever for testing weapons in the field, training troops or developing military doctrines for their use on both the strategic and tactical levels. Even for states not party to the BTWC. Such types of preparations can be and would be detected.

But back to BTWC, Article IX: between 1975 (EIF for the BTWC) and 1993 (Opening for signature of the CWC) we witnessed an accelerated CW armament competition between the US and the USSR (including the startup of the US binary production programme), the start of Iraq’s CW programme culminating in gas being used in the 1980-88 Gulf War; Libya’s CW programme, Syria’s, …

So, as far as the analogy with Dan’s argument goes (I am discussing 2 different weapon categories mentioned in a single treaty): each party to the BTWC, whether a possessor or non-possessor of CW was bound to negotiate the CWC, but it did not prevent several among them to develop, produce, or even use CW during the intervening period.

Syria: Disarmament in animated suspense

Syria has now missed about every single deadline since it was unable to move the Priority 1 chemicals out of the country by the end of last year. These even include renegotiated time frames and the self-imposed final date of 27 April. One more fixed date is pending: 30 June, by which time all precursor chemicals should have been neutralised.

It would now seem that the world will sigh with relief if everything is aboard the Danish and Norwegian freighters by the end of next month. US officials envisage 60 working days to neutralise the volume of precursor chemicals and hydrolyse the mustard agent on board the US ship Cape Ray. The end of this mission could be pushed back even further if factors such as bad weather or sea states exceeding safety standards interrupt activities. In addition, the original schedule foresaw incineration of the reaction mass by the end of 2014. However, one of the companies selected by the Organisation for the Prohibition of Chemical Weapons (OPCW), Finland’s Ekokem, requires at least nine months. This potentially pushes completion of the disarmament tasks agreed in the US-Russian framework agreement of September last year into the second quarter of 2015. Consequently, the disarmament mandate established by UN Security Council resolution 2118 (2013) can be expected to remain in place at least as long.

Similar delays affect the final destruction of former CW production facilities (CWPF). Different interpretations about the perimeter of several CWPFs block consensus decision-making on the formal destruction plan in the Executive Council of the OPCW, and hence progress in the field.

Finally, concerns have emerged whether Syria has declared its entire CW stockpile. In particular, the country has claimed destruction of 200 metric tonnes of mustard gas in March 2013, but initially failed to declare this to the OPCW.

Remaining precursor chemicals

Syrian authorities have consistently claimed that heavy fighting at key sites and high security risks along the transportation routes make it all but impossible to transfer the precursor chemicals to the port of Latakia within the set deadlines. The Joint OPCW-UN Mission has tended to confirm these security assessments. It has also reported shelling into Latakia in March and intensive combat operations around the final storage site.

According to the 7th monthly report submitted to the UN Security Council on 25 April, 96.45% of declared Priority 1 chemicals and 81.09% of declared Priority 2 chemicals had been moved onto the Danish vessel Ark Futura and the Norwegian freighter Taico respectively. Combined they amounted to 92.03%. The remaining 8%—about 100 metric tonnes of precursors—consisted of

  • Priority 1 chemicals:
    • B salt (N (2-chloroethyl)-N-ethyl propan 2 amine salt)
    • DF (methylphosphonyl difluoride)
    • Isopropanol
  • Priority 2 chemicals
    • Butan-1-ol (alcohol)
    • HCl (hydrogen chloride)
    • HF (hydrogen fluoride)
    • Hexamine

On 20 May, the OPCW–UN Joint Mission confirmed the destruction of all isopropanol. (It should be noted that ‘B salt’ did not figure in the initial list of precursors and was included in one of the revised declarations by Syria. It is possible that a declaration error was made concerning ‘BB salt’.)

The 7.2% of chemicals that must still be shipped out remain trapped at Al Sin. Very little is known about the military site, except for its identification as a CW production facility in the 3rd monthly report of last December (Annex, paragraph 15). ‘Al Sin’ features in a few combat reports by insurgent factions published to the internet on 20 March, and are described as depots or an airport. Some press accounts suggest that the chemicals are at an airbase.

Battalion 559 of the Syrian armed forces holds a storage base that fits the descriptions.  It is located about 63km to the northeast of Damascus along a major road travelling from the Adra suburban area in the general direction of Palmyra (Tadmur). About 14km to the south of Al Sin lies the Sayqal Military Airbase, which also houses several ammunition storage installations.

Al Sin has two major access routes (presumable the aforementioned main road going either northeast or southwest) and a secondary road travelling through the mountains. At present, the main access routes are unusable because they are controlled by insurgents or within easy targeting range of their heavier weaponry. The secondary road is impractical, considering that the DF has been transferred into large 2000-litre reinforced containers and the highly dangerous and volatile HF is contained under pressure in industry-standard cylinders. Transport in a large, escorted convoy along a mountainous track not only runs a high risk of accidents, the surroundings also offer many opportunities for ambushes. The Syrian army is currently mounting major military operations to clear (one of) the two principal routes out of Al Sin. Once achieved, the evacuation of the final precursors to Latakia is expected to be completed shortly afterwards.

Destruction of CW production facilities at an impasse

Political blockage over the destruction of Syria’s twelve CWPFs prevents progress on an important dimension of the elimination of the country’s chemical warfare capacity. The Chemical Weapons Convention (CWC) refers to CWPFs in many articles and sections of the Verification Annex. Article II, 8 defines them in terms of equipment for producing or filling certain types of chemicals and buildings that house such equipment. They must be irreversibly destroyed under a detailed destruction plan, although some buildings can be converted under strict conditions to purposes not prohibited by the convention. Despite Syria’s request, the Executive Council of the OPCW has refused to authorise conversion of some facilities.

In contrast, CW storage facilities (CWSF) are discussed only in the Verification Annex, Part IV(A) in relation to the presence of CW, their verification and destruction. A party to the CWC must declare a CWSF’s name, exact coordinates and a detailed site diagram, including a boundary map and the location of bunkers/storage areas within the facility. It must also provide a detailed inventory of the CW they contain. No treaty provision, however, demands the destruction of CWSFs.

Syria has apparently five underground structures, tunnels shaped in the form of a staple. They comprise three major sections. Each of the two extremities offers entrance to the complex. However, only one of the arms is the actual CWPF; the two other sections Syria has declared as storage sites. Following extensive discussions with OPCW technical staff and onsite visits at the end of March, a CWPF destruction plan was proposed to the Executive Council, which it rejected. The United States and other members of the Western Europe and Other States Group represented on the Executive Council argued that the storage areas form an integral part of the production site, and that therefore Syria’s circumscription of the CWPFs is incomplete. In addition, the argument has been put forward that via a network of tunnels they link up to other parts of a larger military complex.

It is difficult to see how the impasse can be overcome soon. The Executive Council habitually decides by consensus. If the United States and its partners press for a vote, they are by no means certain of gaining a majority. Even if they do, there may be ramifications in other areas of treaty implementation further down the road. Syria, for its part, has adopted a very assertive posture since becoming an OPCW member last October and is unlikely to budge on anything that does not represent a formal, unambiguous obligation under the CWC or without pressure from Russia. The current frosty relations between Moscow and Washington are not helpful either.

 Did Syria declare all?

Over the past month or two several questions have arisen as to whether Syria declared its full chemical warfare capacity. They are in part due to the recent attacks with barrel bombs allegedly containing chlorine canisters, and in part to the amendments to its formal declarations to the OPCW. The latter are the result of normal verification routines by OPCW staff, which it undertakes for all parties to the OPCW. Analysis of declarations and onsite inspections often lead to the discovery of inconsistencies, contradictions or even missing information, which yield lists of questions and issues that the state party must resolve. Syria is no exception, and a significant new amendment to earlier declarations is expected in the near future. Although it will not contain new types of chemicals, there will be variations in the volumes of declared precursors without much changing the overall total of 1,300 metric tonnes. In contrast, it will include a thus far undeclared CW research centre near Damascus. (Readers of this blog will recall that the Executive Council and UN Security Council decisions of 27 September compel Syria to declare research facilities, even though this is not required by the CWC.)

A initial team of 8 OPCW inspectors left for Syria on 2 May and they were joined by an additional 5 personnel on 12 May to investigate the chlorine attack allegations. They can have access to the one site where the government has claimed that the rebels used a chlorine weapon, but until now have been refused entry into the rebel areas. Negotiations with insurgents to enable the safe transit of the precursor chemicals to the port of Latakia or for OPCW-UN Joint Mission staff to have access to sites in rebel-controlled territory are conducted through the office of Lakhdar Brahimi, the Joint Special Envoy of the United Nations and League of Arab States for Syria. While the office continues to function, Brahimi’s resignation on 13 May, effective at the end of the month, implies the loss of a lot of political clout with the insurgents. It’s impact on the disarmament process is unclear for the time being, but the convoys transporting the precursor chemicals and the OPCW–UN Joint Mission may face growing security and safety challenges if the current lack of progress continues for any significant length of time. Future investigations of alleged used of CW may also be compromised.

Another element that tends to contribute to the unease about Syria’s truthfulness is the fact that until today the government has not declared owning any of the Volcano rockets believed to have delivered sarin nerve agent against the Ghouta district last August. It did report two such missiles, but stated that it had found them and that it was not their possessor. Many countries and observers blame the Syrian military for the Ghouta attacks and other chemical strikes. [Note: the suggestion that Syria reported Volcano rockets as abandoned chemical weapons has been corrected in a new posting of 11 August.]

Finally, the questions if Syria has declared all its ‘weaponised’ warfare agents revolve around whether it has irreversibly disposed of about 200 metric tonnes of mustard gas. Syrian officials claim that the stock was destroyed at three sites in March 2013, around the time of the chemical attacks in Khan al-Assal near Aleppo and several months before the Ghouta sarin strikes. (No allegation of a mustard attack has so far been recorded.) Interestingly enough, Syria apparently mentioned these destruction activities before or during the US-Russian bilateral negotiations in Geneva last September, but the issue has only been picked up more recently. The Syrian government has now supplied the OPCW with details of these operations, which still require confirmation. OPCW inspectors plan to verify the claim and the veracity of its particulars by means of interviews, record analysis and on-site sampling. UNSCOM inspectors in Iraq during the 1990s occasionally had to resort to similar methodologies to determine whether the claimed volume of agent destroyed without international supervision corresponded to reality. Syria formally declared 20.25 metric tonnes of mustard agent (an amount relatively small compared to the overall volume of declared nerve agent precursors), which will be hydrolysed on board the Cape Ray. Inevitably, the episode has raised concerns among some OPCW members about possible undeclared ‘weaponised’ nerve agents.

More to follow over the next weeks, I am sure.

Postscript: Two hours after posting this contribution, the OPCW published an updated report on the status of CW disarmament in Syria.

Until silence

Children and babies—whether born or unborn—suffer immensely in any armed conflict. Mental trauma from witnessing human wasting, which no person should really be exposed to anymore. Physical injuries that scar the young ones for the rest of their lives, even if a sense of normalcy could ever be recaptured. And death, often considered the worst possible outcome, but nonetheless a fortuitous escape from a lifelong suffering inflicted by a senseless war ripping apart the early stages of their far too many young lives. For the survivors—bereft parents and mothers of the stillborn one—deep-reaching psychological wounds far beyond consolation.

Until the silence says goodbye

Addressing her companion after a mutual acquaintance, a British naval officer who had served in World War 1, suddenly passed away in 1923, Vera Brittain (Testament of Youth, Chapter XXII, 4) wrote:

I don’t think victory over death is anything so superficial as a person fulfilling their normal span of life. It can be twofold; a victory over death by the man who faces it for himself without fear, and the victory by those who, loving him, know that death is but a little thing compared with the fact that he lived and was the kind of person he was … That’s why those war victories with which I was especially associated are still incomplete. That the people faced their own deaths without fear I have no doubt. It is through me that the victory is incomplete, because I cannot always quite feel that their deaths matter less to me than the fact that they lived, nor reconcile their departure, with all their aspirations unfulfilled, with my own scheme of life.

Having lost her fiancé, two brothers and a close friend in the Great war, she was still struggling make sense of death, despite a self-induced mental numbness to cope in a post-war British society that had no time or space to embrace its many scarred veterans with the human carnage she saw firsthand as a voluntary nurse.

No pantomime of time to heal…

For the unborn child or infant physically or psychologically mauled by detonating bombs or shells, there is no victory for having lived that parents could savour. Chemical weapons add to that despair: a person living under their threat has no sense of being able to escape them. There is simply no place to run (to paraphrase Tim Cook’s magnificent book on Canadian soldiers’ adaptation to survive under a perpetual gas blanket during World War 1).

Hurt and fear are overwhelming emotions. Children and gas, when combined, allow for easy, but powerful manipulation of public opinion beyond the battlefield, often for purposes that have little bearing on relieving the plight of those actually facing the threats. Add a couple of graphic pictures; throw in one or two names to make the suffering tangible and direct public emotions to these few foci in order to momentarily blur out the 150,000 fatalities and millions of other casualties shared by all sides in the Syrian civil war. Can a policy maker or shaper fail to respond to such concentrated emotion? This is why I reacted strongly to the unsubstantiated claims that sarin exposure was causing the deformed babies in ‘Must the Belgian babies be bayoneted all over again?

Today, a week or so after The Telegraph (London) and The Daily Star (Beirut) ran their respective ‘scoops’, no additional claims, no new names of children from the Ghouta area, have surfaced. A few media outlets reported on the original stories, but to the best of my knowledge, nobody seems to have delved further into the matter. Claims of sarin’s mutagenic properties appear to have vanished into thin air.

Survive to die alive

In contrast, other factors that may explain the incidence of miscarriages and malformed babies have come to the fore: prolonged extreme stress, concussion, exposure to high levels of dust, malnourishment, unsanitary conditions (at home, in shelters or in hospitals), etc.

Last December, many months before the sarin claims, a trained paediatrician with 20 years experience working Médecins sans frontières attributed the malformations in Syrian infants she was treating to possible deprivation of folic acids. No or insufficient intake during especially the first four weeks of a pregnancy profoundly compromises the neurulation process, which in turn leads to severe congenital deformity.

If this doctor’s surmise is correct, then the rising incidence of stillborn or malformed babies testifies to the dreadful state of Syria’s health system more than anything else.

She also described the wrenching plight of two pregnant women caught up in aerial bombing on their way to the market one sunny day. One lost her baby in her struggle to survive …

No hint of sarin or chemical warfare in her accounts.

There is simply no need to add gas to feel the pain of Syrian mothers …