Syrian accession to the Chemical Weapons Convention – could it be a game changer?
Syrian statements suggest and the UN in New York has confirmed that Syria has decided to accede to the Chemical Weapons Convention. If that accession is confirmed, Syria becomes a contracting party of the CWC and, 30 days later, the 190th CWC State Party. What does this mean for the current efforts to bring the Syrian chemical weapons under international control and eliminate them?
First of all, the legal context will change. By acceding to the CWC, Syria (the government as well as the opposition) will have forgone the acquisition, possession and use of chemical weapons. It will be under a legal obligation to dismantle its CW programme, shut down and disable its CW production facilities, and destroy its stockpile. It also is under a requirement to criminalize any violation of CWC prohibitions with regard to legal and natural persons that come under its jurisdiction; that may not seem to matter right now but could well become important after the civil war, both with regard to any domestic legal steps as well as any action that the International Criminal Court may take.
The OPCW policy-making organs will assume responsibility for determining the parameters for the destruction of the Syrian chemical weapons stockpile and production facilities. The final CW destruction deadline under the CWC has passed (a maximum of 15 years since the entry into force are foreseen under the CWC for completing this task); it will therefore be up to the Executive Council to set a target date for Syria, to review destruction progress and to manage any compliance issues that may arise. It should be recalled in this respect that there is not veto right in the Council’s decision making. Although past practice has placed much emphasis on consensus, pressing decisions that need to be resolved without delay can be voted on. There also remains the option of referring serious compliance issues back to the United Nations General Assembly and/or the Security Council.
The next steps would include a formal and complete declaration by Syria of all its CW stockpile and production facilities, followed by on-site inspections and discussions about how the weapons and facilities will be destroyed. There is no need to wait the 60 days it will legally take under the CWC from deposition of the accession instrument to the time when Syria has to submit its initial declaration – work can start right away. Precedence in the work of the OPCW with other countries, most notably Gadhafi’s Libya, has shown that in-country work on declaration, future verification and legal issues can start even before the country is a State Party, provided the country is in truth preparing to join. The deposition of an instrument of accession would certainly suffice in this regard.
The legal context therefore seems to be falling into place, but can it work in practice? A first obstacle to tackle is how to actually conduct on-site inspections of the declared sites. The recent (still-ongoing) UN investigation of the alleged CW use in Syria has shown that arrangements, however fragile, can be made to temporarily stop hostilities so as enable international inspections.
Can one trust the Syrian declaration to be complete and accurate? Well, even if not, the CWC has mechanisms to deal with suspected non-compliance, including challenge inspection. It may sound far-fetched to envisage a challenge inspection being implemented under the conditions of a civil war. This is where the link to the UN Security Council in case of grave violations of the CWC may come into play, to create the political pressure that would be needed to ensure that it can be implemented, if need be through a binding resolution. How could anyone in the Security Council object to a resolution that would call upon a State Party of the CWC to honour one of its treaty commitments?
But does the OPCW have the capacity and experience to implement all of this on the ground? Its tenure policy has rotated out most of the experienced inspectors that undertook the initial inspection campaigns after the entry into force, its inspectorate has shrunk in size as the verification workload at US and Russian destruction facilities decreased, and its budget obviously has limits.
But the OPCW already had to respond to tenure policy, change in verification demand and shrinking capacity; it has adopted (for inspections at chemical weapons facilities) a scheme that utilises on-call former OPCW inspectors on the basis of short-term special service contracts. This exact same approach could be used for the inspection effort required in Syria, and it would enable to bring into play some of the most experienced inspectors the OPCW had in the past. As for budget, it is actually Syria that will have to pay for CW verification under the CWC.
Destruction will, however, take time. Whilst work with Syria on its declaration can begin right away, and an inspection campaign at the declared CW locations can be mounted within reasonable time frames (however challenging that will be under the circumstances), the elimination of what is said to be a 1,000 tonnes CW stockpile cannot be done overnight. Are there shortcuts?
Maybe the experience that the OPCW has with inactivation of CW production facilities can be of help. Under the CWC, these facilities need to be rendered inoperable without delay, and measures that have proven effective to prevent resumption of CW production activity include such techniques as cutting through pipes and flanges, drilling holes into reaction vessels, filling reaction vessels with concrete, disrupting transportation lines and the like. Why should chemical weapons design specialists not be able to come up equally with interim solutions to disable the existing weapons and make them unfit for use? Can one, for example, remove explosive charges and fill the void with concrete, cut through rocket engines, place artillery shells into metal cases and fill them up with concrete so they cannot be removed but remain accessible for subsequent destruction measures? Can one add decontamination solution to bulk agent containers? For weapons design experts, there surely must be quick ways of making the weapons and any bulk agent unfit for use short of actual destruction or removal from the country. Such an approach would avoid the huge and complicate logistical and security demands related to efforts to consolidated the stockpile in a few safe locations away from battle areas and secure them for several years before destruction can actually begin, or to remove them from Syrian soil altogether.
Such an approach would not destroy the agents in the filled weapons. How much of a risk is that? How likely is it that someone would drill holes into them to recover the agent? Doing so certainly would be a risky undertaking. And there must be means of safeguarding such a disabled stockpile. There would also remain the risk of attacks to release the agent.
In fact, many issues would have to be addressed to make such an interim approach feasible. I am not pretending to have the answers. We may in practice see a combination of in-situ destruction, removal to safe locations or even out of the country, and rendering unfit for use certain parts of the stockpile. But, although the circumstances are unique, dangerous and complicated, degrading the Syrian CW capability to a point when it can no longer be used can be done in a reasonably short time.
Another thought: CWC accession takes the matter of chemical weapons in Syria beyond declaration, verification and destruction. The compliance management mechanisms and the need to criminalise CWC violations have already been mentioned above. But there are other ramifications that should be looked at. How do the provisions on assistance and protection apply in the context of an on-going civil war? Can these treaty provisions be invoked to channel humanitarian assistance including means of protection and medical treatments into Syria, and if so how could this be linked to the activities of humanitarian organisations and international agencies already working in the country?
Finally, the CW issue is of course embedded in the broader issue of how to end the Syrian civil war, stop the fighting and get a political process on the way. I therefore still think a Security Council resolution will be necessary to support and complement the process under CWC/OPCW auspices, not only because the CWC mechanisms are, in the field of non-compliance, linked to the UNGA and the UNSC but also because lasting chemical weapons disarmament by Syria will depend on ending the civil war.