Syria: Should UN Investigators Pass Judgement?

With the horrific events of the past two days in several Damascus suburbs dominating the airwaves and press reports, the ability to establish rough time lines of events and more detailed circumscriptions of the areas affected allows more and more to conclude that several more or less simultaneous chemical weapon (CW) attacks took place in the very early morning hours of 21 August. While the number of casualties — affected survivors and fatalities — is impossible to establish right now, it is clear that scores, if not hundreds of people fell victim to some asphyxiant. Several chemical warfare agents are liquids. The evaporation of droplets after their release creates a toxic cloud that is typically heavier than air. It would seep through any cavity into lower-lying spaces. Many reports indicate that people were sleeping in basements to shelter from nightly shelling. This may account for the large number women and children casualties.

The exact nature of the agent or agents is impossible to determine from the pictures or film footage, even though a minority of people seem to show outward signs of exposure to a neurotoxicant — a family of organophosphorous compounds that includes domestic inspect sprays at one end of the spectrum and the warfare agents sarin and VX at the other end. As the location and time of film footage cannot be ascertained, it is impossible to say whether the civilians were exposed to a mixture of toxic agents or different agents were released over different suburbs. Images of dead birds, cats and dogs tend to support impressions of a large volume of a rather fast-acting agent having been released in some locations.

Who should declare responsibility for the attacks?

As was the case in March 1988 when the first reports of the massive chemical strikes against the Kurdish town of Halabja began to reach us, there now also exists a lot of uncertainty as to what actually happened. Despite the ubiquity of mobile recording devices , it will still take several days, if not weeks before a clearer picture of the tragedy emerges. However, in today’s hyper-mediatised world, the clamour for instantaneous attribution of responsibility will only intensify. After many months of diplomatic haggling over permissions to access sites of earlier allegations of CW use, a team of UN investigators finally arrived in the Syrian capital last Sunday. Many a politician and opinion shaper opines that these scientists and technical experts should speak out against the culprit as soon as they have a clear idea who perpetrated the crimes. In some instances they question the value of the entire investigative process if they do not pass instant judgement.

Instant judgement does not equal instant justice. It merely satisfies other hidden desires: the dark gratification of being able to Saddam-ise yet another political leader, the clamouring for policy objectives that have little to do with the chemical attacks as such, the uncontrollable eargerness to impart wisdom by a fast growing class of blabberati, the need to simplify complex realities for a tweeting global audience, or whatever. Unfortunately, these calls reveal more about the person’s ignorance of both the purpose and process of the investigation than the desire to know the truth (and nothing but the truth).

Framework of the Syria investigation

The UN Secretary-General’s investigative mechanism supports the 1925 Geneva Protocol, which prohibits the use of chemical and biological weapons in armed conflict. Triggered by a request from any UN member, the Secretary-General is authorised to launch an investigation including dispatching a fact-finding team to the site(s) of the alleged incident(s) and to report to all UN members. The mechanism was endorsed by the UN General Assembly in 1987 and the Security Council in 1988. The UN Office for Disarmament Affairs (UNODA) maintains a roster of experts and laboratories supplied and updated by the UN members. It also developed detailed guidelines and procedures for the conduct of investigations.

To support the missions the UN has concluded bilateral agreements with the Organisation for the Prohibition of Chemical Weapons (OPCW) and the World Health Organization (WHO). As a result the team currently in Syria comprises experts from both international bodies.

On the responsibilities of investigators of alleged use of CW, the Chemical Weapons Convention (CWC) is very specific and the OPCW’s tolerance of breaches is tiny, to say the least. Maintenance of confidentiality and factual objectivity in the inspection process are key to the integrity of the convention’s verification regime.

Part XI of the Verification Annex of the CWC deals with ‘Investigations in cases of alleged use of chemical weapons’ in detail. Part E, para. 27 addresses the situation in which a state not party to the convention (such as Syria) is involved:

In the case of alleged use of chemical weapons involving a State not Party to this Convention or in territory not controlled by a State Party, the Organization shall closely cooperate with the Secretary-General of the United Nations. If so requested, the Organization shall put its resources at the disposal of the Secretary-General of the United Nations.

The language is reiterated in the agreement between the OPCW and the United Nations.

In 2012 both organisations concluded a second Supplementary Arrangement Concerning the Implementation of Article II(2)(c) of the Relationship Agreement between the UN and the OPCW. Its contents are not public, but based on some official documents and statements by the OPCW Director-General, I would expect to see the following areas covered:

  • Detailed modalities concerning investigations of alleged use conducted by OPCW inspectors on behalf of the UN Secretary General;
  • UN acceptance of OPCW investigative procedures set out in the CWC (Verification Annex, Part XI, Section A, paras. 1 and 2) and detailed procedures established by the OPCW Director General, as well as of OPCW certified reference laboratories. It would appear from the preparations to investigate the allegations in Syria that the UN Secretary-General designates the head of the investigative team (in this case, the Swedish scientist Åke Sellström) and that the OPCW Director-General decides on the roster of OPCW inspectors. As a state party has (by prior notification) the right to refuse the presence of an inspector of a particular nationality on its territory (Verification Annex, Part II, Section A, para. 2), I would not be surprised that the Supplementary Agreement envisages consultations between New York and The Hague on acceptable nationalities for the OPCW team placed at the disposal of the UN. Some references to the fact that no inspector national from one of the UNSC Permanent Members has been included seem to support this suggestion.
  • Reimbursement of investigation costs incurred by the OPCW;
  • UN ownership of the results of such an investigation carried out by OPCW inspectors;
  • Responsibilities and guarantees about the security and safety of OPCW inspectors on a UN-requested mission;
  • Immunities and privileges of the OPCW team ‘as are necessary for the exercise of its functions’ inside the state not party to the CWC (CWC, Article VIII, paras. 48–51, and Verification Annex, Part II, paras. 10–15); and
  • Information sharing by the UN (via the UN Department for Safety and Security) concerning evolving developments on the ground.

Silence is not just golden, it is mandatory

Even from this partial analysis through the lens of one organisation, the OPCW, the following elements are clear. First, the OPCW procedures are primary, which means that the organisation’s inspectors are bound by OPCW regulations. That includes an all-encompassing ban on public communications, as well as the exclusion of personal opinions and interpretations from the formal reports (which must be factual, and nothing but factual).

Second, the United Nations owns the data collected during the UN mission. In other words, it is not up to the OPCW and its member states to express positions concerning the findings. More importantly, the OPCW Director General will not communicate the findings of his staff members and laboratories (see below) to the CWC States Parties, but forward them to the UN. The organisation and its experts are involved only for their specific professional expertise, not to assess findings.

Third, samples taken at the sites of suspected CW attacks will be analysed in OPCW-certified laboratories. This represents a guarantee of the highest possible analytical standards, because those designated laboratories had to adapt themselves to the criteria (if they did not already meet them) demanded by the CWC verification regime.

The latter point actually highlights another reason why one should not expect judgements from the investigative team: its members collect soil samples and other forensic evidence (e.g., munition fragments), physiological samples from victims and evidence from autopsies, witness statements, etc., but in a next stage, independent laboratories—presumably two or three in different countries—must still conduct their own analyses and report on their results. It is absolutely not inconceivable that those findings might contradict initial impressions by investigators in the field.

Finally, as the Syria experience amply demonstrates, the UN Secretary General’s investigative mechanism depends wholly on the government’s authorisation to enter its territory in order to be able to carry out its mission. (This stands in contrast to the mechanisms available under the CWC, because by joining the convention states parties have no right to refuse entry of OPCW inspectors or investigators.) Therefore, if the impartiality of the investigators were compromised in today’s mission, the tool to look into allegations of CBW use would be severely compromised for the future. Similarly, and to the chagrin of those who wish to see a more prominent WHO role in investigations of suspected incidents of biological warfare, this organisation too refuses steadfastly to publicly attribute responsibility in cases of unusual disease outbreaks.

In summary, I would actually be extremely disappointed if one of the inspectors would break silence and offer public comments on initial findings of the current investigations in Syria. The damage to future investigations, if ever necessary, would be immense.

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