The United Kingdom has tabled a controversial proposal to task the Organisation for the Prohibition of Chemical Weapons (OPCW) with identifying those responsible for chemical weapons attacks in Syria. UK Foreign Secretary Boris Johnson recently argued on Twitter that “with proven technical expertise on chemical weapons, the OPCW is the right body to study who is behind an attack” and announced that “the UK has tabled [a] draft decision aimed at strengthening the ban on chemical weapons.” According to Johnson, his government proposes that “the OPCW begins attributing responsibility for chemical weapons attacks in Syria.” Johnson called on “all right-thinking states to come together” to reaffirm and defend the ban on chemical weapons and to strengthen the OPCW.
The UK proposal will be debated at a Special Session of the Conference of the States Parties to the Chemical Weapons Convention (CWC) on June 26-28 in The Hague. The United Kingdom and 10 other countries requested the meeting “to consider how best to respond collectively” to the threats of development, production, and use of chemical weapons by state and non-state actors and “to unite in a reaffirmation of the international prohibition against chemical weapons use.” Shortly after the director-general, Ahmet Ücümzu, had distributed the request to all 193 states parties, he confirmed that the necessary one-third (i.e. more than 64 states parties) had supported the request to hold the meeting.
The push for an extended role of the OPCW, which is the technical body in charge of overseeing the implementation of the chemical weapons ban, comes against the background of continuing use of chemical weapons. In Syria, chemical weapons continue to be employed in the ongoing armed conflict, killing combatants and civilians alike, including women and children. Only recently, the OPCW confirmed that sarin has very likely been used on March 24, 2017 in Ltamenah province. Elsewhere, modern nerve agents have also been used: in February 2017 in Kuala Lumpur, Malaysia to assassinate the half-brother of North Korean ruler Kim Jong-un and in March 2018 in Salisbury, United Kingdom in a failed attempt to kill former Russian spy Sergei Skripal and his daughter Yulia.
Independent technical bodies like the OPCW can provide facts. Asking them to make judgements about perpetrators—judgements that are ultimately political—runs the risk of undermining their independence. The international community should follow a deliberate course that aims to achieve consensus on how those actors who use chemical weapons can be called to account. The guiding principle should be to avoid any harm to the CWC, which remains the solid foundation of the norm against chemical weapons.
The accountability gap. Current investigations into chemical weapons attacks can only begin to tackle the problem of accountability. Human rights mechanisms have attempted to arrive at conclusions about who was behind the use chemical weapons, but they typically use a lower standard of proof than investigations in the context of arms control or criminal law. Procedures for investigations of the alleged use of chemical weapons under the CWC and the so-called UN Secretary-General’s Mechanism to investigate allegations of the use of chemical, biological, or toxin weapons have authority to collect facts that may help establishing the origin of a chemical weapon use. But such data by itself may not suffice to establish culpability of individuals or organizations. And the CWC’s challenge inspection mechanism has yet to be invoked by any state party.
In 2014, the OPCW’s director-general was charged with clarifying whether chemical weapons are being used in Syria. The OPCW’s so-called Fact Finding Mission has so far investigated 83 alleged chemical attacks and confirmed their use in 14 cases. But the mission’s focus is “to establish facts surrounding allegations of the use of toxic chemicals, reportedly chlorine, for hostile purposes in the Syrian Arab Republic.” It is not tasked with identifying the perpetrators.
In the case of the Syrian armed conflict, attribution was the task of the Joint Investigative Mechanism (JIM), a collaborative effort of the OPCW and the United Nations. In 2015, the UN Security Council Resolution created the JIM with the assignment of identifying the “individuals, entities, groups, or governments who were perpetrators, organisers, sponsors or otherwise involved in the use of chemical weapons.”
However, the JIM’s mandate ended in December 2017, after Russia, in the Security Council, vetoed an extension of the mechanism’s work. Moscow charged the body with having acted in an unprofessional and subjective manner. In reality, Russia was unhappy with the JIM’s findings that Syrian government bodies were responsible for at least four chemical weapons attacks, including the April 4, 2017 attack on Khan Sheykoun, which killed more than 80 people, including many children. The JIM also found that the Islamic State had used chemical weapons in at least two instances.
So there is currently no international, independent, impartial mechanism specifically mandated to investigate who is behind chemical weapons attacks.
Even if it were possible to identify the perpetrators, the road to an international criminal investigation is blocked. The use of chemical weapons is a war crime under…