Category Archives: Chemical

Taking stock of the chemical weapon ban

On 20–21 March the University of Rome III hosted a roundtable discussion to reflect on the current status of the prohibition on chemical weapons (CW) and the future challenges to that ban. Although convened by the Law Department, the speakers represented an eclectic group of experts with backgrounds in international law, political sciences, chemistry and biology, as well as practitioners. Notwithstanding, the meeting yielded considerable coherence in arguments, with questions, challenges and supplementary insights contributing further to an already rich multi-disciplinary texture.

The Chemical Weapons Convention (CWC) is at the heart of today’s prohibition on CW and their use in armed conflict. However, it does not stand in isolation. In fact, one could build a case that the norm against CW has a variable geometry. Approach it from the ban on chemical warfare, and the 1925 Geneva Protocol and its links to the International Criminal Court or the United Nations—in particular, the UN Secretary-General’s mechanism to investigate alleged use of chemical or biological weapons (CBW)—may take centre stage. Approach it from the angle of scientific and technological developments, and the 1972 Biological and Toxin Weapons Convention (BTWC) emerges as a possible point of entry. Approach it from the threats posed by terrorism and UN Security Council resolutions, including 1540 (2004), with their demands for national legislative action come into play. And so on. The various tools available today have created mutually reinforcing bridges. However, they are also the source of contradictions and large gaps remain between them. As the Rome roundtable brought out, it is not always clear how they can be reconciled or filled.

And then, of course, there are the politics. As we are about to commemorate the centenary of the outbreak of the First World War and are just eight days before the 99th anniversary of the chlorine attack near Ypres, Syria’s civil war shows that humanity still has not been fully able to relegate these weapons to history. And while political leaders of the great powers loudly invoke the inhumanity of poison weapon use, their actions today—just like those during the Abyssinian war in the 1930s, the Yemen war in the 1960s, the Iran–Iraq war of the 1980s—demonstrate once again that other geopolitical considerations, national security interests or domestic political agendas trump halting chemical warfare and holding the culprits accountable under international law. (True, some would argue that the 2003 invasion of Iraq served such a purpose, but alas, few are those who believe the proffered unbelievable unbelievables.)

Unsurprisingly therefore, Syria made up one of the main threads tying the various sessions together. But it was not the only one: other recent issues pose remarkably similar challenges to the future of the prohibition on CW. This blog posting summarises the presentations and offers a few personal reflections on points raised during the discussions.

Chemical bonds in a love triangle

Sarah Cleveland (Columbia Law School) discussed the legal implications of prosecuting the criminal poisoning of an amorous rival under the national law implementing the CWC in the United States. The case, now before the US Supreme Court, revolves around Carol Anne Bond. She attempted to poison her husband’s mistress, Myrlinda Haynes, by applying potassium dichromate on the rival’s car door handles and mailbox. Local law enforcement officials were reluctant to investigate. Since Bond was using a letterbox as an instrument of transmission and had been stealing her rival’s mail, the US Postal Service conducted the criminal probe, which led to an indictment under federal rather than state law. Hence the recourse to the US CWC implementing legislation. The case, as it stands now before the US Supreme Court, deals primarily whether Congress can act on an international treaty and thereby supercede states’ sovereign authority over local crimes. As such, the issue has entered into an ideologically divisive debate about overreach by the federal government and usurpation of state powers. However, if Congress does have that authority, then the next questions become whether the CWC was intended to address such criminal cases and what broader implications the Bond case may have for the disarmament regime.

Cleveland contended that the Framers of the US Constitution always wanted Congress to have the power to ensure US compliance with international commitments (even then understood to cover both customary and treaty law) on the national level in order to avoid different treatment of the offence in each individual state. The Offenses Clause enumerates express authority to enforce punishment (whether civil or criminal) on individuals. As over the decades interpretation and character of international and domestic law have evolved, Congress has assumed and justified responsibilities with regard to international agreements, and the Supreme Court has ruled consistently in pertinent cases brought to its attention, the Offenses Clause grants Congress the power to impose civil or criminal punishment under a treaty, such as the CWC. Article VII, 1(a) of the CWC requires states to ‘prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this Convention, including enacting penal legislation with respect to such activity’. Taken together, the elements refute Bond’s claim that her prosecution under federal law intruded on state power, so Cleveland argued.

Whichever way the Supreme Court rules, its decision will have significant ramifications. If it were to accept the applicability of federal law to the Bond case, the next question becomes whether the CWC was intended to deal with crimes of passion, even if they involve poisoning. After all, the convention grew out of a long evolution that began with the codification the customary prohibition of the use of poisons and poisoned weapons in the 1899 Hague Convention with respect to the Laws and Customs of War on Land and the contemporaneous Declaration (IV, 2) on asphyxiating gases. The latter document was the precursor to the Geneva Protocol, which in turn laid the foundation for the BTWC and the CWC. In short, the backdrop to the convention is the comprehensive prohibition of the preparation and execution of chemical warfare in armed conflict between or within states. The 6th preambular paragraph underscores this ambition by declaring that the CWC seeks ‘for the sake of all mankind, to exclude completely the possibility of the use of chemical weapons, through the implementation of the provisions of this Convention’, adding that this complements the obligations assumed under the Geneva Protocol.

After conclusion of the treaty negotiations, the threat of acts of terrorism with CW acquired greater saliency. States responded to the challenge by emphasising national responsibility in the prevention and criminalisation and penalisation of such attacks, inter alia, through national implementation legislation. Thus, UN Security Council Resolution 1540 (2004) reinforced Article VII of the CWC and extended the obligation to all UN members irrespective whether they are a party to the treaty or not. This resolution too places its obligations in the context of preventing the use of non-conventional weaponry in armed conflict or by terrorist entities by affirming in its 1st preambular paragraph ‘that proliferation of nuclear, chemical and biological weapons, as well as their means of delivery, constitutes a threat to international peace and security’. The 4th and 5th preambular paragraphs affirm the Security Council’s resolve ‘to take appropriate and effective actions against any threat to international peace and security caused by the proliferation of nuclear, chemical and biological weapons and their means of delivery’ and its support ‘for the multilateral treaties whose aim is to eliminate or prevent the proliferation of nuclear, chemical or biological weapons and the importance for all States parties to these treaties to implement them fully in order to promote international stability’. The CWC was clearly designed to address international security questions, rather than domestic crime.

As noted earlier, the whole matter arose because the victim, Myrlinda Haynes, had turned to the postal authorities with her complaint based on the contamination of her letterbox and theft of correspondence, and they could only file charges under federal law. Bond’s arrest followed after a postal inspector recorded her applying the toxic chemical on the mailbox with a video camera. However, no other federal statute than the CWC implementation legislation appears to exist under which deliberate poisoning could have been prosecuted.

Article II of the CWC defines a CW very broadly based on the so-called ‘general purpose criterion’. The convention in essence prohibits all use of toxic chemicals and their precursors, except for four categories of purposes under which a toxic chemical and its precursors are not considered to be a chemical weapon (Art. II, 9). Incorporating the CWC’s definition of a CW into national law without bounding the sphere of its application therefore implies that any malicious use of a ‘chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals’ (Article II, 2) can be prosecuted through that law, as has been the case with Carol Anne Bond.

This, however, raises a host of other questions. If one can be prosecuted for using a poison against another person, then what about the prosecution of manufacturing, acquiring and possessing any type of industrial or commercial poison whose purpose falls outside one of the categories of non-prohibited uses listed in Article II? After all, the CWC’s default position is that any toxic chemical that can harm humans or animals is a chemical weapon.

In a previous posting, I commented on Princess Anne’s advocacy to poison badgers as a humane way to prevent cattle herds from being infected with TB. On Arms Control Law, where I cross-post most of my contributions, former CWC negotiator, Sergey Batsanov noted that implementation of the proposal would violate the CWC—Article II explicitly mentions death and harm to animals. He added that he could not recall a single instance during the CWC negotiations when negotiators contemplated culling animals with gas as a legitimate agricultural purpose, in contrast to their consideration of legitimate uses of herbicides, pesticides, defoliants and fertilizers. So, in the wake of Bond v. the United States may we see people in the UK, Europe, etc., invoking national CWC implementation legislation when taking a neighbour to court over poisoning of their cats or dogs? In the United States the move may still require a federal offence, but as always, a stream starts out as a trickle of water springing from the soil that seeks the path of least resistance or greatest opportunity.

Crime and punishment in disarmament

If the Bond case illustrates that disarmament obligations can move in mysterious ways, then the civil war in Syria demonstrates that disarmament and justice may make strange bedfellows. When after the chemical attacks in Ghouta last summer parliamentary democracy effectively blocked retaliatory military intervention and opened the door to disarmament, many people in the Middle East and the West (including international human rights organisations) were up in arms because of deferred justice. Amid all the clamour, disarmament proponents faced the uphill struggle of explaining why weapon elimination is a far more effective option than dropping a few bombs and contributes more to justice by preventing recurrence of the events. Unfortunately, the disarmament message necessarily exceeds the 140 characters of a tweet or the visual impact of a colourful fabricated map.

Beyond the additional mayhem of bombing for the local people and the primal satisfaction of seeing fire and smoke columns caused by screeching jets on 24-hour news reels, what does justice actually entail? As it turns out, bringing the Syrian president and his associates to court for violating international prohibitions on CW use may not be that easy. As the Rome Statute stands now, Thilo Marauhn (Justus Liebig University, Gießen) discerned a fair number of problems as to whether chemical warfare could be part of possible charges before the International Criminal Court (ICC).

Marauhn’s first point concerned the usage of the phrasing in the 1899 and 1907 Hague Conventions (poison and poisoned weapons) and the Geneva Protocol (asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices) rather than the CWC’s more comprehensive definition to refer to chemical weapons. In the final stages of negotiating the Rome Statute, the explicit reference to chemical (and biological) weapons in Article 8 was apparently dropped because some states felt that excluding nuclear weapons from the enumeration was hypocritical. Another phrasing referring to ‘weapons causing unnecessary suffering’ was limited to a listing in an annex, this time to avoid inclusion of nuclear weapons at the demand of the nuclear weapon states. The annex, however, was never agreed. This has left open the question whether phraseology in the Rome Statute and the definition of a CW in the CWC refer to te same thing. Both documents, however, have different purposes. The latter serves a disarmament objective, whereas the former establishes an international institution with the power to prosecute individuals under international criminal law. Therefore it is not possible to accept the definitional scope of one treaty, which has its list of parties, for application by another institution with different membership. In the opposite case, nationals of a state not party to the CWC might have to be tried under a different understanding of a chemical weapon than those from a CWC party. Criminal law does not allow for uneven standards—a principle also underlying the Offenses Clause mentioned by Sarah Cleveland.

Next, he wondered whether Article 8, 2 of the Rome Statute refers only to the use of the toxicants in ‘international armed conflict’, whereas the CWC exhorts states parties to use CW ‘never under any circumstances’, a condition that covers civil wars and other forms of internal armed conflict. The 2010 Kampala Conference extended the coverage of Article 8, 2 to non-international armed conflicts, but the amendment has yet to enter into force. Even so, an amendment to Article 8 only enters into force for the state that has ratified it, regardless of the number of states that have adopted it. The situation again allows for uneven standards.

Finally, Marauhn pointed out that Syria is not party to the Rome statute, which means that according to Articles 12 and 13 of the Rome Statute only the UN Security Council can refer the country to the ICC. Even if such a referral were to take place, it remains an open question whether the Kampala amendment on internal conflicts could be applied to Syria’s CW use against its own population. Indeed, Article 121, 5 of the Rome Statute stipulates that ‘In respect of a State Party which has not accepted the amendment, the Court shall not exercise its jurisdiction regarding a crime covered by the amendment when committed by that State Party’s nationals or on its territory.’ It could thus be argued that Security Council referral must also exclude crimes covered by the amendment. On the other hand, so Marauhn reasoned, an argument could also be made that the provision only applies in cases of state referral to the ICC or the prosecutor investigating on his own initiative. On this basis, he concluded that the ICC could as yet have jurisdiction to prosecute CW use.

Disarming Syria and the Middle East

The roundtable heard three presentations on the process of eliminating Syria’s chemical warfare capacity and one on the problems to convene a meeting to consider ways to remove nuclear, biological and chemical weapons, as well as their delivery systems from the Middle East.

Valeria Santori (Technical Secretariat, OPCW) sketched the legal foundations of the OPCW-UN mandate relating to the destruction of the chemicals Syria had declared to the OPCW, including as regards removal and destruction outside of the country. She went into the details of the decisions by the OPCW Executive Council and UN Security Council Resolution 2118 (2013), and other legal tools relevant for the establishment of the OPCW-UN Joint Mission. A detailed timeline of decisions and deadlines offered insight into the time pressures under which the Joint Mission is to accomplish its tasks under unprecedented conditions of war. It also highlighted how Syria missed some of those timelines by long margins. Santori described the nature of the international disarmament collaboration and ended with a summary of the envisaged destruction operations once the chemicals have been removed from Syria’s territory.

My own presentation discussed Syria’s declarations and looked into the possible reasons for the delays. I expressed my concern about the consequences for the disarmament process from breakdown of US-Russian relations over the crisis in Ukraine, which may take off the pressure from Syria to meet is various obligations in time. I ended with a note of caution on the poor public outreach operations with regard to the elimination of the precursor chemicals at sea in the light of increasing populist comments on harm to the environment.

Mirko Sossai (Rome University III) wondered whether UN Security Council Resolution 2118 challenges international law. After the Ghouta attacks the international community faced different responsibilities with regard to the civil war in Syria: humanitarian concerns, determination of international criminal responsibility, and trying to find an end to the conflict. The US-Russian agreement created the framework for removing Syria’s chemical warfare capacity, which included Syria acceding to the CWC. While the CWC provisions were to provide the overall legal foundation for subsequent actions, the bilateral accord recognised the extraordinary character of the undertaking. The OPCW Executive Council decision of 27 September took those exceptional circumstances into consideration. Resolution 2118 endorsed this decision and set further requirements, but it did not refer explicitly to Chapter VII of the UN Charter. Both documents created a hybrid collaborative–coercive disarmament regime. Sossai argued that as a consequence inspections, rather than building confidence in compliance, became tools to detect non-compliance. To emphasise his point, he referred to the requirement for Syria to allow OPCW inspectors unfettered access and what appears to be a modified challenge inspection procedure in the Executive Council decision. The coercive disarmament dimension can also deduced from the prominence of procedures to address non-compliance. Whereas the CWC has its own compliance enforcement tools, which include possible recourse to the UN General Assembly and Security Council, the Security Council plays a much more important role in the permanent oversight of progress (for instance, by means of monthly reporting by the UN Secretary-General) and responses to possible non-compliance.

Sossai next zoomed in on the destruction of Syria’s CW outside of the country, a process that the CWC does not authorise. Whereas the US-Russian framework agreement and the Executive Council decision of 27 September refer to destruction operations outside of the country ‘if possible’, in Resolution 2118 the Security Council ‘decides to authorize [UN] Member States to acquire, control, transport, transfer and destroy chemical weapons …’. The OPCW Executive Council therefore had resolve the discrepancy in subsequent decisions, including, inter alea, determining that the CWC state party receiving the chemicals for destruction would not be considered a CW possessor. Other decisions addressed Syria’s responsibilities as owner once the weapons have left its territory.

He noted that the UN Security Council can have the authority to override provisions of multilateral treaties—notably through Articles 48, 2 and 103 of the UN Charter—but expressed by way of conclusion his concern that increasingly decision-making on disarmament and arms control matters is shifting towards the Security Council.

Nico Frandi (European External Action Service), also presenting personal views, analysed the impact of the efforts to remove Syria’s CW on the prospects for a zone free of non-conventional weapons in the Middle East. After a brief historical review of the idea to create such a zone and the status of regional participation in global arms control and disarmament treaties, he noted the opposing Arab and Israeli views on how to approach regional security. The former envisages the creation of the zone as a precondition to further discussions, whereas the latter departs from a regional peace and security structure before disarmament can be contemplated. Visions on what types of weaponry need to be included also differ as a consequence of the asymmetric nature of the conflicts.

The current initiative for the zone stems from decisions taken at the 2010 Review Conference of the Nuclear Non-proliferation Treaty (NPT). A meeting due to be held in Helsinki in 2012 has not yet materialised. With the next review conference looming in 2015, the lack of progress thus far risks to have severe negative impacts on global arms control in general and the NPT in particular. Notwithstanding, Frandi discerned some glimmers of hope, including advances in the negotiations with Iran on ensuring the peaceful nature of Iran’s nuclear activities, opportunities emerging from the Arab Spring, and the CW disarmament process in Syria. He noted the EU’s significant financial and diplomatic support in all these efforts.

However, the various areas in which some movement forward can be discerned have not yet been integrated into a broader, region-wide goal of achieving a zone free of non-conventional weaponry. In particular, given that the Syrian CW disarmament initiative rests on a bilateral framework, the deepening US–Russian standoff over the Ukraine and other areas of growing friction may have adverse effects on the successful completion of the project and on regional disarmament as a whole. He therefore hoped that a series of lower-level diplomatic meetings in the Swiss town of Glion could still yield a date for the Helsinki conference before the NPT review conference in May 2015.

Technical challenges to the legal regime

The question of non-prohibited purposes—that is, the circumstances under which a toxic chemical is not considered a chemical weapon under the definition used in the CWC—has already been touched upon. One of those purposes is law enforcement, including domestic riot control. Neil Davison (International Committee of the Red Cross) began his presentation by pointing out that the military and law enforcement interest in riot control agents (RCAs) and so-called incapacitating agents remains. A major distinction between RCAs and the types of chemicals investigated as incapacitating agents exists: whereas the former are characterised by temporary effects that cease as soon as the victim is no longer exposed to the agent, the latter group causes unconsciousness or severe incapacitation by impairing brain function. Incapacitants can pose serious health risks, not in the least because some of the chemicals have a toxicity that approaches the levels of warfare agents, including neurotoxicants. Their use for law enforcement purposes is further complicated by the difficulties of controlling the dosage to which person may be exposed and delivering adequate medical care after usage.

Whereas the CWC defines ‘riot control agent’ and clearly identifies riot control as a non-prohibited purpose (Article II, paragraphs 7 and 9), the use of incapacitating agents is not sanctioned. Given that the convention does not include a definition of ‘incapacitating agent’, any type of toxicant could ultimately be conceived as a law enforcement agent. Such a development would seriously erode the convention. Analysis of various legal instruments and rulings by the international courts have led the ICRC to the conviction that the international legal framework leaves little room for the legitimate use of toxic chemicals as weapons for law enforcement other than of RCAs, as defined in the CWC. It therefore calls on all states parties to confirm a national policy of ‘riot control agents only’ for law enforcement purposes and to have this commitment reflected in national implementation legislation.

In the final presentation of the roundtable, Ralf Trapp (independent disarmament consultant) addressed the challenges to disarmament regimes posed by the convergence of chemistry and biology, and their convergence with other disciplines (such as information technologies and engineering). In the past, CBW were considered under a single banner, but at the end of the 1960s disarmament diplomacy separated both weapon categories as a consequence of differences in perceived military utility. The CWC and the BTWC cover similar scopes, overlap partially, but are completely differently equipped with regard to verification and compliance enforcement. With today’s progress, there is a growing realisation that biology is but another form of chemistry. This is increasingly being reflected in research and industrial production methods.

From a disarmament perspective convergence raises several questions about future regime development, and whether there should also be a growing convergence of the legal regimes prohibiting CBW development and acquisition. Trapp recommended increased consultation between the two disarmament communities and called for growing responsibility of stakeholder communities in industry, research and academia in accompanying the progressing conversion in science and technology in order to preserve their peaceful uses.

When did you last hear ‘gas’ and ‘humane’ in the same sentence?

This morning, I came across an item on the BBC website entitled: Princess Anne: Gassing badgers is most humane way to cull.

According to the piece, Princess Royal’s comments came after the British government said it would not expand badger culling from two pilot culls aimed at reducing TB in cattle.

Interest groups of course welcomed her remarks. As a representative of the National Farmers’ Union said in a BBC radio interview ‘The Princess Royal is noted for outspoken views and her forthright honesty. I think it’s an option that needs looking at. And provided we can tick all the boxes as far as humaneness goes then it would certainly be an option to consider.’

When was it the last time you saw ‘gassing’ and ‘humane’ juxtaposed?

The humanitarian argument was definitely advanced after the end of the First World War to justify the continuation of the chemical warfare programmes in Allied countries. (Germany lost its sovereign right to armament with the 1919 Versailles Treaty.)

Just check this little item in the The Lewiston Daily Sun of 4 June 1932:

Gas is championed as a humane weapon of war by Maj. Gen. Amos A. Fries, who was chief of chemical warfare for the United States during the world War. [...]

General Fries said the humaneness of gas lies in the fact that, while it disables an enemy temporarily, it makes possible a high percentage of recoveries.

The irony shall not escape the badgers.

 

From Flanders’ entrenched politics

[Updated: 9 March 2014]

Next month, on the 22nd, it will be the 99th anniversary of the start of modern chemical warfare. The salient around the Flemish town of Ieper offered the perfect location: its northern edge was the only place along the Western front where German troops did not face the prevailing south-westerly winds that could have blown back the chlorine cloud. Later, of course, shells replaced gas cloud attacks.

Shells imply depots, including ones close to the trenches. In Flanders it is not uncommon to still uncover duds—shells that failed to detonate because of malfunction or simply because they got buried in very soft mud. Each year, some hundred metric tonnes (give or take a few tonnes) of unexploded ordnance is recovered and taken to a demolition site near the village of Poelkapelle. About five percent of that volume is filled with a chemical warfare agent. However, statistics usually shoot up when a former underground storage bunker still full with munition is discovered. Such was the case earlier this week, when a farmer in Moorslede, next to the infamous town of Passendale (Passchendale), was transforming a meadow to grow crops. Since then the bomb disposal unit of the Belgian Armed Forces have already recovered over 300 German shells, a large portion of which are chemical (mostly mustard agent). They expect to unearth plenty more. Some press accounts suggest thousands of shells. That figure may not be exaggerated: almost ten years ago to the day, the bomb disposal unit unearthed 3,242 British and German artillery shells in another part of the same municipality. Presumably they had been buried in the field after the war.

Nothing new really, if the story did not have a typical Belgian twist in the tale. It also emerged that the installation to dismantle liquid chemical warfare agents from the First World War broke down in the summer of 2012 and has not yet been repaired. As a consequence, some 3,200 chemical shells have since then been stockpiled at the Poelkapelle site. And the number is steadily growing. Typically, nobody outside the Ministry of Defence was aware of the breakdown. Not even the Mayor of Poelkapelle (who belongs to the same party as Minister of Defence Pieter De Crem, the Flemish Christian Democrats).  Or so, the Flemish press reported earlier this week…

Actually, a few small articles on 29 and 30 August 2012 referred to a small explosion that destroyed the installation to dismantle munitions filled with liquid agent. As nobody got injured, all safety measures had functioned perfectly and no agent had escaped from the demilitarisation unit, there was little else to write about. In addition, as farmers living just outside the perimeter of the military base housing dismantlement installations never faced any risk from escaping toxic agents, the incident never triggered the local emergency plan called ‘Ieperiet’ (reference to mustard agent ‘Yperite’). That perhaps explains the mayor’s ignorance.

A new twist

The discovery of the potentially large volume buried (presumably chemical) munition at Moorslede naturally raised questions about the Belgian Armed Forces’ capacity to dismantle them. In passing, the Defence Ministry mentioned that the destroyed installation to dismantle shells filled with liquid warfare agents had not yet been replaced. The ministry’s spokeswoman assured that the Poelkapelle site has sufficient safe storage space until 2016 (which is probably true, given the way the munition had been stored before the construction of the dismantlement facility). However, she also immediately engaged in a typical Belgian blame game: the regions did not cough up the money to have the installation repaired.

Just a little word of explanation here. Virtually everybody is aware of the linguistic divisions in Belgium. One way of managing conflicts has been to create three regions: the Flemish, Walloon and Brussels regions. They enjoy considerable autonomy in the organisation of economic affairs and have exclusive competences in environmental matters. The latter aspect explains why Belgium required four ratifications of the Chemical Weapons Convention by the federal and the three regional parliaments. However, the chemical weapon problem is essentially a Flemish one as the First World War frontline ran almost exclusively through the province of West Flanders. Now of course, why should the two other regions assist the wealthiest region of the three?

In addition, the Ministry of Defence is a federal department and it bears responsibility for the dismantlement of the old chemical munitions. A unit of the Armed Forces undertakes the task inside a military domain. So, why should Flanders chip in? Net outcome: installation out of action for more than 20 months.

Supposedly without public knowledge.

A reader of my original blog posting alerted me to the reply to a parliamentary question by Defence Minister De Crem of 21 January 2014, who explained that a German 150mm shell filled with a chemical warfare agents detonated while being bored. Estimated cost to repair the installation was €1.7 million; having it replaced with the latest technology carried a price tag of up to €4 million. He added that the Defence Ministry did not have such funds available, hence the request to the three regions. De Crem noted that only the Walloon region has expressed its willingness to discuss the issue.

Dismantlement of shells with solid chemical warfare agents continues without any hindrance.

And yet another twist

Last September Belgium had been approached to destroy some of Syria’s chemical precursors and possibly its 20-tonne stash of mustard. The Defence Minister declined. One—very plausible—reason circulating last autumn was that even under the best of circumstances issuing an environmental permit takes at least a year, which was far too long in view of the tight deadlines adopted by the Organisation for the Prohibition of Chemical Weapons (OPCW) and the UN Security Council. However, in a reply to a second parliamentary question also on 21 January, the Defence Minister asserted that the installation in Poelkapelle was not suited for modern warfare agents, such as the nerve agent VX. Yes, probably true (even though by that time everybody knew that the elimination concerned precursors and not warfare agents, and that in the context of Belgian involvement we were thinking of the commercial incinerator near Antwerp, which, incidentally, was a consortium partner that bid for the OPCW contracts). He did not refer to Syria’s mustard agent, which the installation could no longer process, as he indicated in the earlier reply concerning the accident.

The fascinating part of this reply is, however, that the Americans never inquired about using the dismantling installation in Poelkapelle. Their request was whether they could set up the Field Deployable Hydrolysis System (FDHS) inside the military domain.

Getting by with a little help from my friends

Ridding Syria of its chemical weapons (CW) is a costly undertaking. It is projected to cost many tens of millions of Euros. To this end both the United Nations and the Organisation for the Prohibition of Chemical Weapons (OPCW) have set up trust funds in support of the Syrian CW disarmament project. The OPCW has already managed to collect close to €60 million. International financial and in-kind support were required as Syria had notified the organisation upon its accession to the CWC that it was not in a position to pay for the CW destruction operations. Despite the international community’s assumption of responsibility for the disarmament project via the decisions taken by the OPCW Executive Council and the UN Security Council on 27 September, analysis of the list of donors reveals that neither Non-Aligned Movement (NAM) members (barring a single exception) nor Arab League states have come to the assistance of its fellow member state. Yet both bodies do repeatedly declare their full commitment to General and Complete Disarmament or a region free of non-conventional weapons for the Middle East.

Sponsoring CW disarmament

In line with Security Council Resolution 2118 (2013) the money in the UN trust fund pays for the purchase and transport of  non-military logistical equipment, water transportation, power generators, port shipping fees, drivers, food, fuel expenses, and other related services. According to a fact sheet released by the Joint Mission earlier this month, $7.014 million (€5.1 million) has been received from Denmark, Luxembourg, The Netherlands, Russia and the United States. Japan has pledged an additional $9 million (€6.55 million).

The OPCW operates two trust funds, one to cover operations in Syria and one to pay for the destruction of Syria’s CW. The fact sheet reports that they total €8.66 million ($9.049 million) and €42.4 million ($58.5 million) respectively in actual contributions and pledges. Last Tuesday the OPCW announced that Japan has donated €13.25 million ($18,2 million)—almost doubling the €7.1 million ($9.7 million) the country had initially pledged to both OPCW trust funds—to support operations related to the destruction of Syria’s CW programme. The grand total of funds available to the OPCW now stands at around €57.3 million ($78.74 million). As important are the in-kind contributions offered by several states and the European Union to both the UN and the OPCW. These include a variety of services and logistical support or the making available of special equipment.

The combined totals of funds entrusted to the OPCW represent the equivalent of over two-thirds of the organisation’s annual regular budget, a clear indicator of the magnitude of the undertaking. Adding the in-kind donations, the total value of contributions may actually exceed the OPCW’s annual regular budget. In addition, the OPCW is to recoup the verification costs from Syria. To this end the Council of the European Union decided to unfreeze funds from the assets blocked under EU sanctions against the Assad regime.

Those figures undeniably testify to the sizeable international support for eliminating Syria’s chemical warfare capacity. Closer examination, however, shows that the burden is carried mainly by the Europe, North America, Australia and New Zealand, and Turkey. Russia, Byelorussia, China and three other Asian states—India, Japan and South Korea—make up the remainder. In other words, not a single country from Africa and Central and South America, and a majority of CWC parties from the Asia–Pacific region contribute in any way to the project. Even tiny Andorra has managed to transfer €15,000.

The friend of my friend is my … frenemy?

Of the 120 members of the Non-Aligned Movement (NAM), which always calls for general and complete disarmament, the elimination of weapons of mass destruction, and international cooperation and development, only India has pledged €736,000 in support of the destruction of CW from fellow NAM member Syria. Iran, a close ally of the Syrian government, currently chairs the group.

Even more striking is the total lack of any form of contribution from the Middle East. (Turkey belongs to the Western Europe and Other States Group of parties to the CWC.) Iran, for instance, actively promotes chemical disarmament. Each year during the Conference of the States Parties it organises an event commemorating the chemical warfare victims of the 1980–88 war with Iraq. Since November 2012 a memorial sponsored by Iran adorns the garden of the OPCW headquarter building. The statue represents a victim gradually losing his/her life from the effects of chemical weapons whose body is simultaneously converted into peace doves. Without concrete action today to safeguard the Syrian people from the consequences of the chemical attacks (irrespective of who might be the perpetrator), Ypres, Sardasht and Halabja are reduced to mere incidents in the history of warfare and denied meaningful commemoration. Being close, Iran may want to press the Syrian government to speed up the removal of the precursor chemicals and intervene to offer its expert medical assistance in the field. Chairing the NAM, it may wish to press members to actively contribute to the international CW removal effort in Syria. For a government trying to reconnect with all constituencies of the global community, active and demonstrable participation might send many positive signals about its political commitment to disarmament in all its national and international dimensions.

None of Syria’s Arab League partners (all of whom except Egypt are parties to the CWC) have even made a token contribution. Some members may have deep-rooted issues with President Bashar al-Assad, but the money does not actually go to him. It contributes to eliminating the possibility that civilians do not have to face another Ghouta amid all the ongoing carnage. Yet, the regional organisation will undoubtedly profess its absolute commitment to a Middle East free from non-conventional weapons at the Preparatory Committee of the NPT Review Conference starting in New York next April. Particularly, it will express its profound frustration with the fact that no meeting to rid the region from biological, chemical and nuclear weapons, and missiles has yet been convened as requested by the final document of the 2010 Review Conference. And for sure it will blame precisely those countries that contribute the most to the elimination of Syria’s CW.

Will somebody point out that by supporting the elimination of Syria’s chemical weapons, Middle Eastern states may actually change the security calculations in their region (including those by Israel), and that therefore they, rather than outsiders, could contribute greatly to their desired goal of regional disarmament?

Hybrid disarmament framework and slowdowns

The publication of the 4th monthly report by the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW), Ambassador Ahmet Üzümcü, and UN Secretary-General Ban Ki-moon last month drew worldwide attention to Syria missing important interim deadlines for the removal of chemicals from its territory. US Ambassador Bob Mikulak’s head-on criticism of Syria’s procrastination at the latest OPCW Executive Council meeting reflected  frustration shared by many states. The responsibilities Syria assumed under the US-Russian Framework agreement of 14 September, as a party to the Chemical Weapons Convention (CWC) and under UN Security Council Resolution 2118 (2013) include the removal of the Priority 1 chemicals by 31 December and the shipment abroad of all other declared chemicals with the exception of those it must destroy by itself (essentially isopropanol and the mustard agent residue in the original containers) by 5 February. The tripartite status-of-mission document, which stipulates the operational roles for Syria, the OPCW and the UN, was finally signed on 6 February. According to Resolution 2118, this agreement should have been concluded by 1 November. Being critical to organising the whole destruction process within the tight deadlines, the UN and the OPCW had already handed the Syrian government a proposal on 16 October.

Such developments should hardly come as a surprise. Ample historical evidence suggests that states will attempt to thwart coercive measures towards relinquishing weapon capacities, particularly if they do not view themselves as having been defeated. The key question, however, is how to appropriately counter such brinkmanship or gamesmanship. Past cases also illustrate how inconsiderate responses defeat the original disarmament design and shift the goal posts for all involved.

Hybrid disarmament and its consequences

While securing and eliminating a chemical warfare capacity in the midst of an armed conflict is without precedent, the hybrid disarmament framework set up to organise the endeavour is equally unique.

One aspect of the OPCW-UN joint project falls undeniably under the header ‘coercive disarmament’: the international community, spearheaded by the United States and Russia, demands Syria’s chemical disarmament. The original Geneva Framework Agreement of 14 September came about as an effort by Russia to avoid the military strikes threatened by France, the UK and the USA in retaliation for the chemical attacks against the Damascus suburb of Ghouta on 21 August. Bashar al-Assad’s government acquiesced, fully realising that the bombardment of its conventional military formations and command and control infrastructure would irreparably weaken its military strength. The imminency of such air attacks has receded considerably, but their possibility in case of non-compliance with the disarmament obligations was not excluded from Resolution 2118. Paragraph 21 envisages measures in accordance with Chapter VII of the UN Charter. At the end of January, Secretary of State John Kerry warned Damascus of military punishment under the resolution if it failed to speed up the removal of the chemicals from its territory. (Russia almost immediately rejected the warning.)

Coercive disarmament arrangements typically call for no-refusal, intrusive verification measures, such as comprehensive declarations and anytime, anyplace inspections. This characteristic is less salient in Syria’s case because of its accession to the CWC. Nevertheless, in its decision of 27 September (§2(d)) the OPCW Executive Council authorised the inspection at the earliest possible opportunity of any undeclared site identified by another party to the CWC. By assigning the Director-General responsibility for determining the seriousness of the claim, rather than reserving this task for itself (as with a challenge inspection), the Executive Council acknowledged the exceptional circumstances surrounding Syria’s disarmament. Similarly, should the Director-General report delays by Syria in fulfilling its disarmament requirements or lack of cooperation, the Executive Council is to meet within 24 hours and could decide on swift referral of the recalcitrant to the Security Council (§3(b)). The very tight final destruction deadline of 30 June—a mere nine months after the Geneva agreement—and the monthly requirement to report to the Security Council also testify to the coercive nature of Syria’s obligations.

The second dimension of the disarmament project is cooperative, the typical framework for treaty-based weapon elimination activities. Syria’s joining of the CWC as part of the deal underpinning the Framework Agreement ensured that the international community (rather than bi- or plurilateral actions, as initially favoured by the US) would assume responsibility for the dismantlement of the country’s chemical warfare capacities. The decision by the OPCW Executive Council of 27 September (shortly thereafter endorsed by UN Security Council in Resolution 2118) guaranteed that the verification of CW destruction and determination of intermediate deadlines would happen in line with relevant CWC provisions. Moreover, the cooperative framework has also opened the doors to international cooperation, financial assistance and operational support to secure, transport and eliminate Syria’s declared chemicals. Given the difficult circumstances of securing CW in war zones, the UN’s role in Syria also exemplifies the collaborative dimension. Whereas the OPCW bears prime responsibility for technical matters, the UN takes the lead in areas such as security and safety, diplomacy, logistics, communications, and so on. The OPCW–UN Joint Mission in Syria, which was set up on 16 October, guarantees unity of coordination.

The hybrid disarmament framework creates interesting pathways for enforcing compliance. On the one hand, the UN Security Council monitors progress through the monthly reports submitted by Ki-moon and briefings in New York by the Special Coordinator for the OPCW–UN Joint Mission, Sigrid Kaag. It has various options to compel Syria to meet its disarmament obligations at its disposal, including sanctions or the authorisation of military force under Chapter VII of the UN Charter. However, as illustrated by Russia’s prompt reaction to Kerry’s warning last week, consensus among the veto-wielding permanent members is unlikely under the present circumstances.

On the other hand, the CWC has its own compliance enforcement mechanisms (Article IX). These include bilateral consultations between states parties and options to involve the OPCW decision-making organs, the Executive Council and the Conference of the States Parties. Among the tools available are clarification requests and challenge inspections (neither of which has been invoked thus far). Article VIII determines the powers and functions of both organs, including their respective responsibilities in reestablishing compliance. In cases of particular gravity and urgency, the Executive Council shall bring the matter directly to the attention of both the UN General Assembly and Security Council. (However, note the different pathway in §3(b) of the Executive Council decision of 27 September, as mentioned earlier.) The big difference is that before referral to the UN, consensus would have already been achieved in the Executive Council, making a veto in the UN Security Council most unlikely.

While the CWC suggests some possible actions, the Executive Council has considerable leeway in determining appropriate measures to redress non-compliance. Such measures need not necessarily be punitive. For example, having missed the ultimate destruction deadline of April 2012, Russia and the US are required to submit regular detailed updates to the Executive Council and a detailed annual report to the Conference of the States Parties. To further ensure ongoing commitment to CW destruction, an Executive Council delegation each year alternately visits Russian and US destruction sites. The OPCW, however, has not yet faced non-compliance with state-party refusal to cooperate. It would enter uncharted waters in such a case because the CWC does not prescribe specific corrective or punitive measures.

Resistance to coercive disarmament

Coercive disarmament is typically imposed by victors on the vanquished. Through the 1919 Treaty of Versailles the Allies compelled Germany to dismantle its chemical warfare capacity (which included handing trade and manufacturing secrets) and surrender its machine tool production equipment and heavy weapons. After Iraq’s eviction from Kuwait in 1991, UN Security Council Resolution 687 ordered the destruction of any weapons, infrastructure and equipment, and materials related to its nuclear, chemical, biological and ballistic missile programmes under supervision of the UN Special Commission on Iraq (UNSCOM) and the International Atomic Energy Agency (IAEA).

In neither case did the party who lost the war feel vanquished. The Allies did not occupy German territory. In fact, on Armistice Day their troops had not even crossed into the country. In 1991, the US-led coalition ceased combat operations 100 hours after the start of the ground offensive without fully occupying Iraq and removing those in power. As a consequence, neither country felt defeated. The coercive disarmament measures felt unjust, and from the start—unconsciously or by policy design—resistance built up. In Germany, the industry led efforts to defeat the Allied design to confiscate its heavy machinery by destroying factory equipment and smelting the steel. While incurring the loss of their capital investments, they nonetheless preserved precious raw materials to rebuild the machinery at some future point. Meanwhile, as an unintended consequence, Allied verification of the dismantlement of Germany’s war production capacity collapsed and had to be abandoned.

In the belief that the UNSCOM activities would last for months only, Iraq immediately set out to thwart as much as possible any operations to uncover the nature and full scope of its chemical and biological weapon programmes. However, as the inspectors persisted and began to build an increasingly accurate picture, Saddam Hussein’s regime stepped up its obstruction and provoked a succession of political crises that required Security Council decision making. As the UN repeatedly sought to avoid recurrence of air strikes by the US-led coalition, Saddam Hussein was able to exact concessions that hollowed out the original Security Council mandate. In addition, US vacillation between enforcing Resolution 687 and removing Saddam Hussein from power challenged regime security from Iraq’s perspective, which took away any willingness to have the weapon files closed. For Saddam Hussein, resistance was not just a question of demonstrating steadfastness and resilience in the face of adversity. Preserving ambiguity about his weapon holdings became a matter of deterrence against hostile neighbours. Western doubts about UNSCOM’s efficacy in uncovering and dismantling the CBW and ballistic missile programmes paradoxically assisted Saddam Hussein’s survival strategy.

Al-Assad’s gamesmanship

Despite the circumstances that led to the international effort to dismantle its CW, Syria does not feel vanquished nor, for that matter, that it is losing the war. Al-Assad’s decision to relinquish his CW was a short-term, but nonetheless strategic one to ensure regime survival. He views all follow-on actions through the same prism. At the Conference of the States Parties last December—Syria’s first as a party to the CWC—its delegation responded obstreperously to any suggestion of responsibility for the war carnage. That included the chemical attacks in Ghouta. Indeed, it almost presented its accession to the convention as a favour to the global community. With this mind-set, Syria does not consider it excessive that the global community is paying for the elimination of its CW. (Under the CWC a possessor state should bear the cost of disarmament.) Quite on the contrary, it even requested the OPCW to pay for the verification activities, a move that was strongly resisted by several states parties.

Syria’s regained assertiveness on the international stage is in no small measure due to the US-Russian Framework Agreement and the country’s subsequent accession to the CWC. As I have argued previously, multilateral disarmament presumes that all parties involved regard each other as equal partners. Syria consequently exerts its full sovereign rights as an OPCW member. For better or worse, a disarmament framework creates an environment that allows a perpetrator of war crimes to receive full consideration as a party to the treaty, while disengaging it from the consequences of its actions on the battlefield. In many respects Syria’s position recalls Iraq’s ability to address the Paris conference to restore the authority of the 1925 Geneva Protocol convened by French President François Mitterrand in January 1989, while Kurdish representatives were denied access.

Under those circumstances, it should cause little surprise that al-Assad seeks to challenge the coercive elements in the CW disarmament arrangements. He will not defy the overall obligations assumed under the CWC, but he is already thinking about his and Syria’s position after the war. Presidential elections are due to follow on the heels of the June CW destruction deadline. He realises that once the chemical precursors have been removed, Syria will no longer enjoy its current privileged situation. War crime allegations and international calls for justice will dominate the international agenda once more, and acute threats of military intervention will return. Engagement in the Geneva II negotiations may remain his only means to retain equal status with other members of the international community.

In order to avoid being seen as weak, domestically or internationally, he cannot cave in too easily to Western demands. Seeking concessions from the international community, whether by requesting various types of equipment, proposing alternative destruction methods for its former CW-related infrastructure, or trying to obtain delays beyond the pre-agreed deadlines, can easily be viewed as part of al-Assad’s broader strategy. The more he can provoke the West—the United States, United Kingdom and France, in particular—to issue warnings and threats of military strikes, the more he ensures the backing from the two other permanent members of the Security Council and hence his own survival. However, as said, he cannot afford to fall foul of the CWC lest he lose his (limited) international support.

Still disarmed

This analysis does not wish to discount the real problems on the ground posed by the war fighting and the various technical and logistical challenges inherent in all complex undertakings. They are the objective explanations for the delays. Disarmament, however, also entails many little political games to frustrate the goals of another party. Such games are neither rare, nor unexpected. There are reasons why the Conference on Disarmament in Geneva remains deadlocked, the Biological and Toxin Weapons Convention hobbles along without a verification machinery, and the OPCW cannot adopt a long-term vision for the post-destruction phase of the CWC. In instances of coercive disarmament, elements of state or regime survival interfere with the demands to relinquish particular arms categories.

Outside of the CW or broader disarmament communities, questions will persist whether granting Syria partnership status in order to eliminate its chemical weapons weighs up against the ongoing massive human suffering. As argued in this posting, the partnership status enables certain types of political manoeuvring to achieve a better bargaining position at the negotiation table, and hence ensure regime survival.

While attention is currently focussed on some interim deadlines, one must not forget that Syria already lost its capacity to wage chemical warfare when installations, equipment and munitions necessary to prepare and deliver the toxic agents were rendered unusable. Within two months after the Geneva Framework agreement a recurrence of Ghouta became impossible. One cannot deny that preventing a war crime from occurring is preferable to decrying its consequences.

It remains my view that the deal on eliminating Syria’s chemical warfare capacity has helped to open the doors to formal diplomatic negotiations. It gave the international community common cause and it directly engaged various parties on multiple levels in order to set up and sustain the disarmament process:

  • Globally:
    • US-Russia
    • UN Security Council
    • OPCW-UN Joint Mission
  • In the field:
    •  International community (UN and Joint Mission) – Syria
    • International community (UN and Joint Mission) – Insurgents (mostly via their respective proxies)
    • Syria – Insurgents (for local cease-fires related to disarmament activities)
    • Insurgents – Insurgents (idem)
  • Formal framework for international assistance, with regard to financial support, removal, destruction, and security (the process currently involves about 40 countries).

It is a complex and delicate framework, which could easily be brought down by an inconsiderate move by any one of the parties involved. The agreed interim destruction deadlines intend to keep Syria under continuous pressure to meet its obligations. The country’s gamesmanship should be countered, but military threats should not be issued carelessly. Syria’s bluster was also on full display during the UN-sponsored meetings to seek an end to the civil war in Montreux and Geneva last month. Knowing their foe, opposition representatives retained their composure in the face of the verbal onslaughts. And they were even able to set the tone of one session by proposing at its start to share a moment of remembrance for all war victims. That is hope, the first spark of which was ignited by the international collaboration to rid Syria of its toxic weapons.

Public Outreach in Destruction of Syrian CW

Open letter to Secretaries John Kerry and Chuck Hagel

 

February 3, 2014

Secretary of State John Kerry

US Department of State

2201 C Street, NW

Washington DC 20520

 

Secretary of Defense Chuck Hagel

US Department of Defense

1400 Defense Pentagon

Washington DC 20301-1400

 

RE:  Public Outreach and Stakeholder Involvement in Destruction of Syrian Chemical Weapons

Dear Secretary Kerry and Secretary Hagel:

We the undersigned environmental, public health, nonproliferation, and arms control experts have been closely following all aspects of the Syrian chemical disarmament process.  We believe that the most urgent issue today is to make sure that all relevant chemicals from the Syrian stockpiles are speedily delivered to the port of Latakia and loaded onto the Norwegian and Danish ships.

But at the same time we consider it important to ensure the success of the follow-on destruction phase, where the US, for good reasons, has taken the lead.  We have reviewed the plans for the destruction of Syrian chemical warfare materiel (CWM) on the MV Cape Ray, a US roll-on-roll-off merchant marine ship, and we support the planned technical approach.  We understand that sea-based destruction may be a less-risky approach at the current moment than in-country destruction in Syria, reflects the urgency of the matter, and also offers a workable alternative in view of the reluctance of other countries to destroy Syria’s toxic chemicals and binary precursors on their own territory.

We also believe that use of the Field Deployable Hydrolysis System, as installed on the Cape Ray, will minimize any potential risks to public health and the environment.  It is important, in our view, to recognize that there are no loaded chemical munitions in the stockpile to be destroyed, thereby eliminating the need to deal with explosives, rocket propellant, and weapons systems; and there is no live nerve agent, only 22+/- metric tons of mustard agent, and some 540 metric tons of key binary chemical weapons components planned to be processed on board the ship.  These facts are not secret and are known to the experts, but in order for the public to be reassured, there is a need for a targeted effort to bring this information and knowledge to local communities.

Those of us who have been actively involved in the U.S., Russian, and other chemical demilitarization programs over the past two decades can testify that the initial absence of active dialogue with local communities and the public at large has resulted in serious misunderstandings and, in fact, reluctance to host destruction facilities; this, in turn, has become a major factor behind the long delays in implementing national obligations of both the US and Russia under the Chemical Weapons Convention.

Although our review has persuaded us to conclude that the risk of toxic effluent releases to the atmosphere, land, or sea from this operation will be low, we understand why people in the Mediterranean region and elsewhere might respond with suspicion or even opposition to this unique demilitarization of toxic chemicals at sea and in foreign countries.  There are already clear signs of discontent and anxiety in this respect coming from Italy, Greece, Turkey, and Cyprus.  Such opposition could clearly delay or prevent the timely and important mission to safely eliminate Syria’s chemical weapons stockpile in 2014.  We therefore suggest the following three steps to help address this challenge:

1) Multilateral organizations, participating national governments, and non-governmental organizations should immediately schedule public dialogue/forums in Italy and elsewhere in the Mediterranean region to explain the technical processes, to discuss the potential risks and benefits of the Syrian chemical weapons destruction program, and to respond to the questions, concerns, and suggestions of local citizens, regulators, and experts.

2) The United States agencies operating the neutralization process on board the MV Cape Ray should provide daily updates, including any monitoring data of air and water, via a dedicated website, on disposal operations; this could be linked with both the United Nations and OPCW (Organization for the Prohibition of Chemical Weapons) websites as well.  In addition, live, 24-hour webcams on board the ship should be considered as a confidence-building measure, consistent with security and safety requirements, in order to document and make available the demilitarization activity to the public via a website.

3) Communities, likely in the U.S., Britain, and other European countries that may receive precursor chemicals and/or effluent from the Syrian chemical weapons demilitarization program, should be notified of any proposals to handle or destroy the chemicals and toxic effluent in their areas prior to the start of operations.  The OPCW and the United Nations Joint Mission, along with national governments and private industry, should be encouraged to support and cooperate with any national, regional, or local public dialogue/forums and regulatory hearings that are established to review or oversee these toxic chemical disposal operations.

We all believe that full transparency, public outreach, and inclusive engagement of all stakeholders needs to be an integral part of any toxic waste management process, and especially with components of a chemical weapons program.  Engaging potentially impacted communities in a timely and transparent way will not only strengthen the protection of public health and the environment, but it will help alleviate public concerns that could otherwise undermine this historic and important demilitarization mission.  In a wider sense, it will be an important contribution to the much needed success of this unprecedented cooperative international project for WMD disarmament in a country engulfed in a costly civil war and in one of the most sensitive areas in the world, the Middle East.

Thank you for your timely attention to this matter.  Responses can be addressed to Dr. Paul F. Walker, Director, Environmental Security and Sustainability, Green Cross International, 1100 15th Street, NW, Suite 1100, Washington DC 20005, USA, tel +1-202-222-0700, pwalker@globalgreen.org.

Sincerely,

Dr. Paul F. Walker, Director, Environmental Security and Sustainability, Green Cross International, and Coordinator, Chemical Weapons Convention Coalition (Washington DC, USA)

Ambassador Sergey Batsanov, Director, Geneva Office of Pugwash Conferences on Science and World Affairs, Member of Pugwash Council, and former chief Soviet and Russian negotiator of the Chemical Weapons Convention (Geneva, Switzerland)

Daryl Kimball, Executive Director, Arms Control Association (Washington DC, USA)

Irene Kornelly, Chair, Colorado Citizens’ Advisory Commission for Chemical Demilitarization (Pueblo, Colorado, USA)

Finn T. Longinotto, Senior Fellow, Environmental Security and Sustainability Program, Global Green USA (Washington DC, USA)

Erich Pica, President, Friends of the Earth-United States (Washington DC, USA)

Elio Pacilio, President, Green Cross Italy (Rome, Italy)

Lenny Siegel, Executive Director, Center for Public Environmental Oversight (California, USA)

Sharon Squassoni, Director and Senior Fellow, Proliferation Prevention Program, Center for Strategic and International Studies (Washington DC, USA)

Dr. Ralf Trapp, Consultant, CBW Arms Control and Disarmament (Chessenaz, France)

Craig Williams, Co-Chair, Chemical Destruction Citizens’ Advisory Board (Blue Grass, Kentucky, USA)

Dr. Jean Pascal Zanders, Director, The Trench, and Council Member, Pugwash Conferences on Science and World Affairs (Ferney-Voltaire, France)

Organizational affiliations listed for identification purposes only.

 

Cc:       His Excellency Dr. Sa’ad Abdul Majeed Ibrahim Al-Ali, Permanent Representative of       Iraq to the OPCW and Chairman, OPCW Conference of States Parties

His Excellency Mr. Francesco Azzarello, Permanent Representative of Italy to the             OPCW

The Honorable Thomas M. Countryman, Assistant Secretary of State, Bureau of    International Security and Nonproliferation, US Department of State

His Excellency Dr. Olexandr Horin, Permanent Representative of Ukraine to the OPCW   and Chairman, OPCW Executive Council

Ms. Sigrid Kaag, Special Coordinator, OPCW-United Nations Joint Mission

Ms. Angela Kane, High Representative for Disarmament Affairs, United Nations

The Honorable Frank Kendall, Under Secretary of Defense for Acquisition, Technology   and Logistics, US Department of Defense

His Excellency Mr. Roman A. Kolodkin, Permanent Representative of the Russian            Federation to the OPCW

His Excellency Dr. Robert Mikulak, US Ambassador to the OPCW

Mr. Carmen J. Spencer, Joint Program Executive Officer for Chemical and Biological        Defense, US Army

His Excellency Mr. Ahmet Uzumcu, Director-General, Organization for the Prohibition     of Chemical Weapons

The Honorable Andrew C. Weber, Assistant Secretary of Defense for Nuclear, Chemical, and Biological Defense Programs, US Department of Defense

Italy to the rescue

Reuters reported two days ago that Italy has agreed to provide a port to enable the safe transfer of Syria’s priority 1 chemicals from the Danish and Norwegian ships arriving from the Syrian port of Latakia to the US vessel Cape Ray for hydrolysis and neutralisation, most likely in international waters.

Speculation about the proposed port arises now. Italian officials have thus far refused to identify it. According to the daily Corriere della Sera, as cited by The Voice of Russia, the chemicals will be kept in one of the Italian ports until the transfer to the Cape Ray. It cited an unnamed source in the Italian Ministry of Defence, who suggested that the harbour might be in Sicily or Sardinia. Both islands have cargo ports. However, with the exception of the container and oil terminals in Cagliari in the south, those on Sardinia appear small and mainly offer connections to southern France and northwest Italy. Sicily has some larger commercial harbours, particularly the ones of Augusta on the east coast and Pozallo on the southern tip. However, the Foreign Ministry source in the Reuters report stated that the chemicals would not touch Italian territory at any point.

The ‘free port’ concept

The only way that I can reconcile the latter point with the general idea of Italy’s offer is the concept of a ‘free economic zone’ or a ‘free port’. These are areas with less stringent customs regulations and virtually no oversight from public authorities on transshipments. From the perspective of the Chemical Weapons Convention, free economic zones and free ports pose implementation challenges as a state party might not be able to certify the total absence of illicit transactions there. Furthermore, they contribute to discrepancies between the amounts of chemicals declared by exporting states parties and the amounts declared by the recipient states parties in respect of the same shipments. Free ports also raise some hurdles with regard to the Proliferation Security Initiative.

I, of course, do not know the exact words used in the interview for the Reuters article. The term ‘territory’ may cause some confusion. In the legal sense it covers not just land, but also territorial waters and the airspace above Italy. Whichever port the Scandinavian ships may call at, they would have to travel through Italian territorial waters. However, if ‘territory’ were to mean ‘soil’ or ‘land’ in the sense that the goods would be transferred from ship to ship without first being brought onto Italian soil, then perhaps ‘terreno’ rather than ‘territorio’ might have been used. ‘Territorio’, however, also translates as ‘jurisdiction’, which opens an interesting channel for speculation.

Trieste comes into view

Trieste’s harbour has several free port areas exempt even from European Union regulations. They include zone for mineral oils and an industrial one. I would not be surprised if they can handle industrial toxic substances. Its description on the internet by the port authority contains the following interesting passages (emphases added):

The Free Port of Trieste is political territory of the Italian State. Italian and European Union laws cannot, however, restrict the freedoms relating to customs duties and operations guaranteed by the Peace Treaty and its instruments of implementation. The legal status of the Free Port of Trieste is essentially embodied in two regimes: unrestricted access and transit and customs clearance exemption.

With regard to unrestricted access to the port, Annex VIII establishes free movement of goods and services and freedom of access and of transit without any discrimination and without customs duties or charges other than those levied for services rendered (see articles 1, 5, 10, 16 of Annex VIII; articles 2, 3, 6 and 7 of Commissarial Decree 29/1955; articles 6 and 7 of Commissarial Decree 53/1959). […]

[…]

ADVANTAGES OF THE FREE PORT OF TRIESTE

  •  non-discriminatory right of entry of ships and cargo, irrespective of their destination, origin and nature, with the possibility of staying there for an indefinite period, free of duty, taxes or other charges other than those levied for services rendered, with no need for authorisation for loading, unloading, transhipment, movement and storage, and with no obligation to identify a customs destination for such cargo, which can be decided by the operator at a later date
  • prohibition on customs intervention (and thus customs control of goods entering and leaving the Free Zones, which takes place only at the free-zone crossing points) when loading and unloading goods, except for specific exceptions under economic, health and public safety regulations (some goods, such as those under monopolies, weapons, drugs, pocketable items, must be placed in special warehouses supervised by Customs). Community goods are treated as leaving customs territory when they cross into the Free Zones, with the entry of EU goods into the Trieste Free Zones representing an export transaction not subject to VAT.

[...]

In sum, the Trieste port has the capacity and is used to working with large volumes of interesting goods, all the while a government official can claim that it does not control what comes into the port.

Still, this is pure speculation on my part, but admittedly an interesting option to entertain.

Not so dead lines ‒ some updates and corrections

In my posting of 24 November Not so dead lines I tried to assess the composition of Syria’s chemical weapon (CW) arsenal based on official statements, the decision of 15 November by the Executive Council of the Organisaton for the Prohibition of Chemical Weapons (OPCW) and the publication of the Request for Expression of Interest (EOI) inviting commercial companies to participate in the disposal of chemicals and resulting effluent. Given that several elements were based on conjecture, deduction and rough calculations, I offered them with caution pending confirmation.

This post supplements, updates and corrects the previous entry. I have retained the relevant section headers.

A, B and BB

  • I referred to the informal use of ‘Priority 1′ and ‘Priority 2′ chemicals relating to the respective removal dates of 31 December 2013 and 5 February 2014. The reaction mass resulting from neutralisation and hydrolysis is referred to as ‘Priority 3′ chemicals, and their complete elimination is envisaged for the second half of 2014.
  • The codes for the V-agent precursors A, B, BB and BB salt were identified correctly.
    • The reaction of A with B produces the nerve agent VX.
    • The reaction of A with BB yields the lesser known nerve agent VM.
    • The declared volume of BB salt is small: 29 kg.

What do we now know?

This section had a lot of speculative calculations. With one exception ‒ the volume of mustard agent ‒ the proposed figures approach actual data. These, however, remain confidential.

  • The volume of DF is around 570 metric tonnes.
  • Sulphur mustard amounts to 20.25 metric tonnes.
  • Syria’s declared volume of precursors is 1,045 metric tonnes and that of raw materials is 290 metric tonnes, making for a combined total of 1,335 metric tonnes.

I expressed some surprise to find 120 tonnes isopropanol listed in the Request for Expression of Interest in view of the Executive Council decision that all isopropanol must be destroyed inside Syria. This turned out to be an error in the earlier versions of the EOI. The item has now been removed from the list. The figure, however, reflects Syria’s actual declared volume.

The Hexamine, which could have had several applications, was declared by Syria as a precursor in the manufacture of sarin. So, that cancels speculation about the production of the explosive RDX.

 

Sea-based destruction of Syria’s CW proposed

A few days ago the press revealed that the United States has offered to neutralise some of Syria’s most dangerous chemicals aboard the Maritime Administration vessel MV Cape Ray. In the margins of the Conference of the States Parties to the Chemical Weapons Convention (CWC) currently underway in The Hague, more details about the proposed neutralisation process have become available. At the time of writing, it appears that the US proposal is the only viable chemical weapon (CW) disposal method on the table.

Although a decision on method of destruction for Priority 1 chemicals is not expected before 17 December (there are some rumours of a possible delay), the United States has already begun reconfiguring the Cape Ray in order to meet the tight deadlines in the decision of 15 November by the Executive Council (EC) of the Organisation for the Prohibition of Chemical Weapons (OPCW). Immediately after that decision, the facility agreement required under the CWC can be finalised and signed.

The chemicals in question are one warfare agent—some 20 metric tonnes of sulphur mustard agent—and several precursors to nerve agents, notably methylphosphonyl difluoride (DF), O-Ethyl methylphosphonothioic acid (EMPTA), N (2-chloroethyl)-N-isopropyl propan 2 amine (solution 23-64%), and N (2-chloroethyl)-N-isopropyl propan 2 amine (salt). Hydrolysis will be applied to break up the mustard agent; the nerve agent precursors will undergo chemical neutralisation.

The United States will deploy its mobile neutralisation installation, the Field Deployable Hydrolysis System (FDHS). While the configuration is new, the titanium reactor vessel was a spare in storage for the elimination of US mustard agent. The FDHS has now been tested with simulants. The elimination of the US CW stockpile has given its operators extensive experience with the neutralisation process. While originally designed for operation on land, it has now been adapted for use on a ship. Even though there was a lengthy process to find a country willing to host the destruction of Syrian CW (eventually ending in the PR debacle when Albania refused three weeks ago), it is interesting to note that already in September US officials were inquiring about the possible deployment of the FDHS aboard a vessel.

Setup of the ship

The ultimate goal is to build a fully self-contained neutralisation system on the ship, which comprises storage of the reactants, the Syrian chemical agents and the effluents resulting from the neutralisation process, as well as the FDHS. When fully reconfigured, the Cape Ray will feature four decks and a lower storage area:

  • The spar deck will hold 32 reagent containers and has a helicopter pad.
  • The upper deck will initially hold 188 reagent containers (a number of which will be filled with fresh water for the neutralisation of the mustard agent). When empty, they will be repurposed to receive effluents.
  • The main trailer deck will house two FDHS set up side by side and offer storage space for the 127 containers with the mustard agent and nerve agent precursors.
  • The lower trailer deck will hold 104 containers of 6.600 gallons each for storage of effluents.
  • The tank top will hold another 78 containers of 6.600 gallons each for storage of effluents.

The main area of operations will be the trailer deck. It will be configured in such a way that no agent or effluent, whether gaseous or liquid, can escape the ship and contaminate the air or sea. This environmental enclosure enables the isolation of the deck from the rest of the vessel.

Effluents will be stored under controlled conditions until transfer on land. In particular, the PH levels will be adjusted so that they can be held in the tanks for months or even years (as experience at the Newport CW facility in the USA has demonstrated). The effluents will essentially be low hazardous waste, which can be incinerated at any commercial facility in Europe or the United States without the need for special permits or reconfiguration of installations. Together with environmental concerns, the desire to enable commercial incineration is one of the main reasons why fresh water will be used to hydrolyse the mustard agent. Sea water contains solids and the salts would affect the systems for filtering the fumes from the incineration.

The Cape Ray will carry a crew complement of 23. The specialists responsible for the neutralisation activities number 36, who will be working in teams of four.

Much of the work will be monitored via a video link to the command centre on the upper deck. An onboard laboratory will provide the analytical reports on the neutralisation process.

Safety and security

While the FDHS represents a novel configuration, the neutralisation system is based on proven technologies and processes. Aboard the Cape Ray, it will be powered by the ship’s power sources. The elimination of independent generators removes a potential hazard source. At the same time, no propellants or explosives, which typically pose some of the greatest safety hazards in CW elimination, will be on the ship. People involved in the project development stress that only chemical liquids and solids will be processed. They also note that in the entire US CW destruction process nobody has ever been killed as a consequence of exposure to toxicants, and they plan to apply the same stringent safety standards for the sea-based elimination operations.

The environmental enclosure on the main trailer deck ensures that no effluents will escape. Nothing will be discharged into the sea or the air. Filtration systems that can even cope with an accidental release of agent or effluent will be in place. This same deck is the only place on the ship where items will be moved, mostly to feed the precursor chemicals and mustard agent to the FDHS. All reactants and effluents will flow through an elaborate system of pipes.

Escorting US naval ships will protect the Cape Ray from external threats and offer urgent evacuation options in case of an accident resulting in casualties. People can also be evacuated via helicopter.

Proposed schedule

If the US receives the green light by 27 December at the latest, then the Cape Ray can set sail from Norfolk, Virginia by 4 January 2014. The locations where the chemicals will be transferred from a (presumably) Danish roll-on, roll-off (ro-ro) cargo ship onto the Cape Ray and actual neutralisation operations will take place are presently unknown. All Syrian chemicals will be loaded onto the Cape Ray in a single shipment. The US schedule of operations allows for a 10-day sea voyage.

A land-based neutralisation of the proposed volume of chemicals would require approximately 30 days. Given the special circumstances of working at sea, the planners foresee 45–60 days to complete the operation at sea. This leaves them with a safety margin of some 16 days to comply with the OPCW-set deadline of 31 March. This buffer, however, is likely to be one or two days shorter if time for the transshipment from the Danish ro-ro and travel to the high sea if no state allows the neutralisation to take place in its territorial waters.

Barring some catastrophic incident, weather conditions may be the single most important factor affecting progress. The sea state, which is the locally observed motion of the waves, comprises nine categories going from 0 (glassy, no waves) to 9 (phenomenal, waves of over 14 metres). Neutralisation operations aboard the Cape Ray can take place under sea state levels 0 and 1 (waves up to 0.1 metres) and tests are currently being run to determine whether they could continue at level 2 (up to 0.5 metres). The primary consideration here is that the operators can safely continue their activities on a rolling and pitching ship. Safe storage of the precursors, reactants and effluent is guaranteed up to sea state level 4 (waves up to 2.5 metres).

Bearing this in mind, the Cape Ray will most likely operate in an enclosed sea. As it is as good as certain that the vessel will be escorted the US Navy, the Mediterranean is a good bet, although some delegates at the CSP in The Hague have dropped the possibility of the Baltic Sea.

Final elimination of the reaction mass is not taken up in this time schedule. As noted in another blog contribution, an EC decision is still pending.

Allegations of CW use in Syria revisited

Since acceding the the Chemical Weapons Convention (CWC) last month, Syria has submitted detailed declarations about its chemical weapon (CW) holdings and activities. While confidential, details of the composition of the CW arsenal have emerged from documents published by the Organisation for the Prohibition of Chemical Weapons (OPCW). In particular, the publication of a request for expression of interest (EOI) by the commercial industry to dispose of certain toxic materials or their effluents has shed some light on Syria’s declarations.

Looking at the listing of chemicals in the EOI, two substances intrigue me with regard to allegations of CW use in Syria earlier in the year:

  • Hydrogen chloride (HCl): Syria declared 45 metric tonnes. The first serious allegation of CW use near Aleppo on 19 March included several witness statements of a chlorine smell. Syria called for an investigation under the auspices of the UN Secretary-General. I was one of the people calling for more details to ascertain that the incident actually involved CW use as the narratives conflicted with the visual evidence. Moreover, later statements referred to sarin. More relevant is that there is a chlorine plant at nearby Khan al-Assal, whose control switched several times from government to rebel hands and vice-versa. Although the declaration does not confirm nor shed light on who was responsible for the 19 March incident, it makes the initial witness reports more plausible.
  • Hexamine: Syria declared 80 metric tonnes. This compound is a precursor to an explosive known as RDX rather than to a chemical warfare agent. In July Russia’s UN envoy Vitaly Churkin handed over evidence concerning the Aleppo attack to UN Secretary General Ban Ki-moon, adding that the RDX found in the warhead of the unguided missile Bashair-3 reportedly used in the assault was not consistent with what the armed forces use. After the Ghouta attacks in August, Russia again advanced the presence of RDX as evidence to blame insurgent rather than government forces for the use of toxic chemicals. Richard Guthrie of CBW Events commented in the same press report that it was not inconceivable that the Syrian military could have used RDX ‘if the government side was developing a semi-improvised short-range rocket” and “if there happened to be a stock available. While I would agree that it would be unlikely for a traditional, well-planned short-range rocket development program to use RDX in that role, it is not beyond the realms of possibility that, as the Syrian government did not seem to have an earlier short-range rocket program, it may have been developing rockets with some haste and so using materials that are at hand.’ [The information on hexamine has been updated.]

Only two more intriguing questions to be clarified…

Let’s see whether the final report of the UN investigative team in a few weeks time will (be able to) provide answers.