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2021-04-01
How to Effectively Outlaw Chemical Weapons?
A chemical weapon is defined as any toxic chemical that can cause death, injury, incapacitation, and sensory irritation, deployed through a delivery system, such as an artillery shell, rocket or missile. International law explicitly prohibits the use and possession of chemical weapons.
Unfortunately, in recent years, the global standard against chemical weapons use has eroded, and it is critical that responsible states wake up and initiate joint action to reinforce it.
Systematic violations of the Chemical Weapons Convention (CWC) and the malign use of chemical agents have continued for nearly a decade without accountability.
What is alarming is that these incidents risk growing in severity and becoming widespread for as long as the issue remains unaddressed.
Reinforcing the rule against chemical weapons use necessitates a unified global effort to utilise all CWC provisions and to strengthen the consequences that violators face in accordance with international law.
The Beginning
The first known use of chemical weapons in modern history was in April 1915, when the Germans unleashed chlorine gas on units of French and Algerian soldiers at Ypres, Belgium. Following that attack, chlorine, phosgene, and mustard gas were used on a widespread basis throughout the First World War, accounting for approximately 90,000 of the war’s casualties.
The Geneva Protocol
In response to a global recognition of the indiscriminate effects of chemical weapons use, the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, dubbed the Geneva Protocol, was negotiated.
From that point, chemical and biological agents were banned from use in war as a matter of international law.
However, the production, stockpiling, and intermittent use of chemical weapons continued, in part due to the narrow scope of the Geneva Protocol, which applies only to the use of chemical weapons in interstate conflicts.
A number of states included in their ratifications a reservation of the right to use chemical weapons in retaliation against a chemical weapons attack or offensively towards those not party to the protocol, including the United States, which ratified the Geneva Protocol only in 1975, after dropping napalm and Agent Orange over Vietnam throughout the Vietnam War.
The de facto norm against chemical weapons use solidified following the entry into force of the CWC in 1997. Negotiations on the CWC began in 1980 at the UN Conference on Disarmament, ultimately producing a treaty prohibiting chemical weapons in 1993 that is far more expansive than the Geneva Protocol.
The CWC goes beyond the Geneva Protocol by banning not only the use but also the development, production, stockpile, and transfer of chemical weapons. Today, the near-universal treaty has 193 states-parties. There are only four CWC holdout states: Egypt, Israel, North Korea, and South Sudan.
The CWC requires that all states verifiably destroy their declared chemical weapons stockpiles upon accession to the treaty. The CWC established the Organisation for the Prohibition of Chemical Weapons (OPCW), which supports implementation of the CWC and verifies states-parties’ compliance with their obligations under the treaty. The CWC’s near universality and the governing OPCW’s oversight played a role in upholding the global standard against chemical weapons use for nearly two decades.
Six states declared stockpiles upon acceding to the treaty: India, Iraq, Libya, Russia, South Korea, and the United States. Albania declared a chemical weapons stockpile several years after joining the CWC and has since destroyed it. Only the United States has yet to complete destruction of its stockpile, but it is scheduled to do so by 2023. Since the CWC’s entry into force, more than 98 per cent of the world’s chemical weapons stockpiles have been verifiably destroyed.
Erosion of the Norm
Reports of chemical weapons attacks in Syria began in early 2013 as the Assad regime clashed with Syrian opposition forces amid the civil war. In August that year, news spread of a large-scale chemical weapons attack in Ghouta, with an estimated 1,000 or more people experiencing convulsions, foaming from the mouth, blurry vision, and suffocation—symptoms consistent with nerve agent poisoning.
The United Nations launched an investigation into the alleged use of chemical weapons in Syria, and the OPCW dispatched technical experts to aid in the investigation.
UN and independent governmental assessments concluded that sarin, a volatile nerve agent, was used by the Assad government in the attack.
World leaders began to weigh the prospects of military intervention. The UN Security Council met in two emergency sessions in a week. The UK Parliament voted against supporting military action while U.S. President Barack Obama stated he would seek authorisation from Congress for a limited strike.
The United States and Russia forged an agreement whereby Syria would accede to the CWC and surrender its chemical weapons arsenal, which would be verifiably destroyed through a coordinated effort led by Washington and Moscow with the support of the OPCW and the UN. Syria submitted a declaration of its stockpile to the OPCW on September 20, 2013.
Prompt destruction of Syria’s chemical weapons programme alleviated concerns that the weapons would continue to be used on a large-scale basis throughout the country’s civil war.
The destruction of Syria’s enormous declared chemical weapons stockpile marked an extraordinary feat.
While Syria did declare and surrender the bulk of its stockpiles of chemical weapons, chemical agents, and associated equipment as required by the 2013 agreement, a host of allegations arose in 2014 regarding the use of a toxic chemical, likely chlorine gas, in the Syrian conflict.
The OPCW responded to these allegations through the conduct of its Fact-Finding Mission (FFM). From 2014 to 2020, the OPCW deployed the FFM numerous times in Syria.
In 2015 the UN Security Council unanimously adopted Resolution 2235, which condemned “any use of any toxic chemical, such as chlorine, as a weapon” in Syria and established the UN-OPCW Joint Investigative Mechanism (JIM), dedicated to identifying those responsible for chemical weapons use in Syria.
The JIM determined in August 2015 that the Syrian government was responsible for chemical weapons use during at least two incidents, in April 2014 and March 2015. The JIM found that the Daesh group was responsible for the use of sulfur mustard in Syria in August 2015. Chemical weapons use continued in Syria despite the JIM findings implicating the Assad regime and the supposed total destruction of Syria’s stockpile. The first major allegation surrounding the renewed use of sarin in Syria came in April 2017, in an attack that killed dozens of civilians in Khan Shaykhun, suggesting that Syria did not give up its entire chemical weapons programme or that it reconstituted parts of it in violation of the CWC.
After the FFM verified that sarin was used in the attack, Russia vetoed a Security Council vote to extend the mandate for the attributive JIM for another year. The JIM’s final report established that the Assad regime was responsible for the use of sarin in the April 2017 attack.
OPCW member states voted to establish the Investigation and Identification Team (IIT) in 2018.
In April 2020, the IIT found that the Assad regime was responsible for a series of chlorine and sarin attacks in Syria in March 2017—a month before Khan Shaykhun.
During the first portion of the 25th annual conference of states-parties, held November 30–December 1, 2020, 46 states co-sponsored a resolution to suspend Syria’s rights and privileges in the “decision-making bodies” of the CWC and the OPCW.
The Syrian government’s more recent chemical attacks have been met with far less forceful denunciations by the international community as compared to the strong and coordinated international response that immediately followed the 2013 sarin gas attack in Ghouta.
The Syrian case highlights two important conclusions. First, it reveals that although the global norm was supported and strengthened by the CWC, it is distinct from the convention.
Second, the strength of the global norm against chemical weapons use is foremost measured by the extent to which the weapons are not used, under any circumstances, by any state or nonstate actor.
The relatively muted response to ongoing use of chemical weapons, primarily involving chlorine and mustard gas, in Syria from 2014 onwards, combined with Russia’s efforts to shield the Assad regime from blame for the chemical attacks, has weakened the norm.
Outside Syria, the targeted use of chemical weapons in assassinations have further weakened the normative and legal prohibitions on chemical weapons use.
Two major instances of chemical weapons use—the 2017 assassination in Kuala Lumpur of North Korean leader Kim Jong Un’s half-brother, Kim Jong Nam, using VX, and the 2018 poisoning in the United Kingdom of former Russian spy Sergei Skripal with a Novichok agent—were met by a similarly lackluster response from the international community.
The norm against chemical weapons use will be restored when the international community shores up its response to instances of use and demonstrates that such use is never acceptable under any circumstances. Perpetrators of chemical weapons use must be held accountable.
The recent OPCW finding that a Novichok nerve agent was used to poison Russian dissident Alexei Navalny presents an opportunity for a unified effort to reinforce the global standard against chemical weapons use. Navalny was poisoned with a Novichok agent in August 2020 on a domestic flight in Russia. Moscow has denied responsibility for the attack.
Novichok agents were added to the CWC’s list of banned Schedule 1 substances in June 2020, after the poisoning of Skripal triggered a campaign by CWC members to amend the Annex on Chemicals, subjecting countries in possession of the nerve agent to the convention’s most stringent declaration and verification requirements.
The CWC: A Preferred Instrument for Complete Prohibition
Reinforcement of the global norm against chemical weapons use requires taking steps to strengthen the existing mechanisms included in the CWC while shoring up the international community’s ability to respond to the use of chemical weapons by any state or nonstate actor and hold them accountable.
The OPCW has taken a series of important steps to strengthen the global norm, notably by addressing Syria’s chemical weapons programme through the Executive Council’s July 2020 decision and by expanding the CWC Annex on Chemicals in 2019. Further measures should be pursued.
Widespread support for a strong OPCW budget is critical for the organisation to make progress towards reinforcing the norm. Russia, Iran, Syria, and other CWC states-parties have opposed the OPCW budget for several years, arguing that the OPCW is overreaching its prescribed mandate to oversee the demilitarisation of declared chemical weapons stockpiles.
It is important that, despite opposition by spoilers, states-parties continue their otherwise strong support for an effective OPCW budget.
With adequate funding, there are a range of approaches the international community and specifically the OPCW can pursue to reinforce the global norm.
1. The OPCW Executive Council, together with input from all CWC states-parties, should explicitly clarify what rights and privileges will be revoked under the convention for noncompliant behaviour.
2. CWC states-parties should establish a precedent for challenge inspections.
3. The OPCW should work to immediately expand the mandate of the Investigation and Identification Team (IIT) to investigate any alleged use of chemical weapons by any CWC state-party.
3. The OPCW should work to immediately expand the mandate of the Investigation and Identification Team (IIT) to investigate any alleged use of chemical weapons by any CWC state-party.
4. Partner states should consider expansion of the International Partnership Against Impunity for the Use of Chemical Weapons.
5. The OPCW should establish a near-automatic process by which all findings attributing chemical weapons use to an individual, state, or nonstate actor are compiled for referral to and prosecution in national or international courts or tribunals.
5. The OPCW should establish a near-automatic process by which all findings attributing chemical weapons use to an individual, state, or nonstate actor are compiled for referral to and prosecution in national or international courts or tribunals.
6. The international community should pursue the prosecution of perpetrators of chemical weapons use.
Need for Action
In his speech before the 25th conference, OPCW Director-General Fernando Arias said, “The world now is not the same as the one of 1993, when the Convention was signed. It is a more polarised place, where progress on demilitarisation and non-proliferation is constantly threatened, and the efforts of the international community to live in a safer place are compromised.”
Against the backdrop of Syria’s chemical weapons programme and the repeated use of nerve agents by certain governments to poison political dissidents and innocent bystanders, Arias’ words ring true.
There is an urgent need to pursue additional, more creative approaches to strengthen the global norm against chemical weapons use.
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