Published: 06 May 2021 Authors: Stefan Talmon and Muskan Yadav
The Chemical Weapons Convention (CWC) prohibits the use of chemical weapons, as well as their development, production, stockpiling and transfer “under any circumstances”. Syria acceded to the Convention on 14 September 2013, declaring that it “shall comply with the stipulations contained [in the Convention] and observe them faithfully and sincerely, applying the Convention provisionally pending its entry into force for the Syrian Arab Republic.” The Convention entered into force for Syria 30 days later on 14 October 2013. The CWC goes beyond the Geneva Protocol of 1925, which prohibited the use of chemical weapons only “in war”; that is, in international armed conflict. Although Syria had been bound by the Geneva Protocol since 17 December 1968, its provisions were not applicable to the non-international armed conflict raging in Syria since 2012.
Since 2013 there had been continual reports that chemical weapons were being used in Syria. On 21 August 2013, a chemical attack with the nerve agent sarin delivered by surface-to-surface rockets killed more than 800 people and injured many more in the Ghouta area surrounding the Syrian capital Damascus. As a consequence, under the threat of military intervention the Syrian Government under President Bashar al-Assad agreed to the destruction of its chemical weapons stockpiles and joined the CWC. Germany welcomed Syria’s decision to accede to the CWC as a “a positive first step to securing the chemical weapons stockpiles in Syria” and supported the destruction of Syria’s chemical weapons by providing technical and financial assistance as well as military protection to the ship in the Mediterranean on which the chemical weapons were neutralised.
The establishment and end of the OPCW-United Nations Joint Investigative Mechanism as instrument to identify the perpetrators of the use of chemical weapons in Syria
The armed opposition and the Syrian Government accused each other of deploying chemical weapons. On 29 April 2014, the Director-General of the Organisation for the Prohibition of Chemical Weapons (OPCW) established the OPCW Fact-Finding Mission (FFM) in Syria “to establish the facts surrounding allegations of the use of toxic chemicals, reportedly chlorine, for hostile purposes in the Syrian Arab Republic.” The scope of the FFM’s mandate, however, did not include the task of attributing responsibility for the alleged use of chemical weapons. In order to identify “to the greatest extent feasible” the perpetrators of the use of chemical weapons, the UN Security Council decided unanimously to establish an OPCW-United Nations Joint Investigative Mechanism (JIM) in August 2015. The JIM was to investigate all incidents where the OPCW FFM had determined that the use of chemicals as weapons was involved. The Security Council also reaffirmed that it would impose measures under Chapter VII of the UN Charter in case of the use of chemical weapons by anyone in the Syrian Arab Republic. On 31 October 2016, the UN Security Council extended the mandate of the OPCW-UN JIM until 18 November 2017 and expressed its intention to consider a further extension before the expiration of this mandate. In response to reports by the OPCW-UN JIM which identified certain persons involved in the use of chemical weapons in Syria, Germany joined 41 other UN member States in sponsoring a Security Council draft resolution which would have condemned the use of chemical weapons by the Syrian Arab Armed Forces and the Islamic State terrorist group in Syria and imposed sanctions on individuals and entities responsible. However, the draft resolution was vetoed by Syria’s main ally, Russia, and by China. On 1 March 2017, the spokesperson for the German Federal Foreign Office stated:
“We very much regret that the United Nations Security Council was again unable to reach agreement on this important issue [i.e., the use of chemical weapons in Syria], as Russia and China vetoed the resolution. The Security Council has thus failed to condemn the use of chemical weapons in Syria, which has meanwhile been confirmed by the United Nations and the Organization for the Prohibition of Chemical Weapons, and to impose sanctions against Syrian individuals and entities that are, in the Security Council’s view, responsible for this use.
Germany unequivocally and emphatically supported this draft resolution as a co-sponsor. We were and we remain of the opinion that the Security Council has a duty to take a clear position on these scientifically confirmed uses of chemical weapons and the violations of the Chemical Weapons Convention in Syria. Our position on this is clear. The use of chemical weapons is to be outlawed as a violation of international humanitarian law and all standards of the international community.”
On 4 April 2017, a chemical weapons attack on the opposition-held town of Khan Shaykhun killed some 80 people and wounded another 200. Responding to initial reports of the attack, Federal Foreign Minister Sigmar Gabriel stated:
“Should reports be confirmed that people in the Syrian town of Khan Sheikhoun were victims of a poison gas attack for which the Syrian regime is responsible, this would be an act that plumbs the depths of cruelty. It would be yet another reason why we must not count on the Assad regime to help in the fight against terrorism.
We trust that the United Nations Security Council will take a clear stance should this suspicion be confirmed. Anyone who is responsible for such acts must know that, sooner or later, he will be brought to justice. This is one of the reasons why Germany is assisting UN efforts to collect evidence of the most serious violations of human rights in Syria.
Both the use of chemical weapons and targeted attacks on medical facilities violate international humanitarian law, as well as all standards of the international community and in particular the Chemical Weapons Convention, which Syria joined in 2013.”
The next day, before any investigation of the events by the OPCW FFM or any conclusion by the OPCW-UN JIM, Federal Foreign Minister Gabriel held the Syrian Government responsible for the attack, stating:
“The gas attack in Syria is a barbaric war crime. The members of the Assad regime who are responsible for this barbaric act must be held accountable. […]
Russia is an ally of the Assad regime and, as such, bears special responsibility. I call on the Russian government to use its role in the UN Security Council to take concerted action with all other civilised nations in the wake of this gas attack. We support the demand that the Organisation for the Prohibition of Chemical Weapons (OPCW) hold a special meeting to address this case.”
On 7 April 2017, the United States launched a retaliatory cruise missile strike against a Syrian airbase from which it alleged the chemical weapons attack was launched. Five days later, the United States, together with France and the United Kingdom, submitted a draft resolution to the UN Security Council in which the Council would have condemned the attack on Khan Shaykhun in the strongest terms and expressed its determination that those responsible must be held accountable. The Council would also have imposed obligations upon Syria to cooperate with the investigation of the JIM and FFM into the attack. The resolution was again vetoed by Russia. The next day, Federal Foreign Minister Gabriel commented:
“It is most regrettable that the Security Council has, as a result of a further Russian veto, failed to adopt a resolution condemning the dreadful events in Khan Sheikhoun. And yet it is vital to investigate this incident as rapidly as possible and to send a clear signal that the international community will not tolerate the use of such illegal and inhumane weapons.
We expressly support the Organisation for the Prohibition of Chemical Weapons (OPCW), which has already commenced investigations into these crimes, and call on the Syrian regime to grant the organisation access with immediate effect.”
On 29 June 2017, the OPCW FFM reported that a large number of people, some of whom died, were exposed to sarin and that sarin had been used in Khan Shaykhun as a chemical weapon. The next day, the Federal Foreign Office issued the following statement on the publication of the report:
“The comprehensive, thoroughly researched report by the Organisation for the Prohibition of Chemical Weapons (OPCW) draws the clear conclusion that sarin was used on 4 April in Khan Sheikhoun.
Sadly, it has therefore been substantiated that the use of an internationally banned nerve gas killed approximately 100 people and injured at least 200. This clearly proves all those wrong who claimed that sarin was never used in Khan Sheikhoun.
We most strongly condemn the employment of chemical weapons in Syria, which has now been proven beyond a doubt. As a next step, it is important to swiftly identify the individuals who were responsible for this barbaric crime. Anyone who uses chemical weapons needs to be fully aware that the international community does not tolerate the use of these banned weapons, and that those who are responsible will be held accountable. We believe the United Nations Security Council has a special obligation to ensure that this happens.
The OPCW-UN Joint Investigative Mechanism will now begin to look into who was responsible for this event. Should this investigation conclude – as all evidence seems to suggest – that the Syrian regime is to blame for the use of sarin in Khan Sheikhoun, then this would be a new, flagrant and most severe violation of the Chemical Weapons Convention, of which Syria is a member. […].”
On 24 October 2017, Germany joined 40 other UN member States in sponsoring a U.S.-prepared draft resolution extending the mandate of the OPCW-UN JIM for a further period of one year. Russia, on the other hand, proposed to postpone the vote on the extension of the mandate until after the presentation of the report by the JIM on “the episode in Khan Shaykhun” which was to be published on 26 October 2017. After Russia failed to win enough support for its motion to postpone the vote, it vetoed the extension of the JIM mandate. The next day, a spokesperson for the Federal Foreign Office commented on the events at the UN Security Council as follows:
“The Federal Government cannot comprehend why the members of the Security Council were unable to agree on an extension of the JIM and thus further investigation into the use of chemical weapons in Syria. Those who voted against the draft bear the full responsibility. This equates to a devastating signal of impunity for those who are responsible for the use of chemical weapons in Syria. At the same time, the right of the victims of chemical weapons in Syria and the investigation of these crimes are not being taken into account and here people had vested their hope in the international community.
The Federal Government will continue to work to ensure the perpetrators are identified and finally brought to justice. Key importance attaches to the next report to be issued by the JIM which is due to be published in the next few days.”
In its report of 26 October 2017, the OPCW-UN JIM concluded that “the Syrian Arab Republic is responsible for the release of sarin at Khan Shaykhun on 4 April 2017.” The next day, a Federal Foreign Office spokesperson issued the following statement:
“The report, which was submitted to the United Nations Security Council yesterday, confirms that the inhumane use of sarin in Khan Shaykhun on 4 April 2017 was the work of the Assad regime. Of this there can be no serious doubt. The report also reveals that IS was responsible for the use of mustard gas in Um-Housh on 15 and 16 September 2016.
The Security Council now has to agree on an appropriately clear response. We appeal to all its members to embrace their responsibility and reconsider extending the JIM in order also to identify those behind other incidents involving the use of chemical weapons. The latest report shows how important this work is. The OPCW Executive Council needs to hold a special session to discuss the report. Here, too, we are working to bring this about.
Through this clearly proven use of a chemical weapon, the Syrian regime has once again inflicted extreme suffering and committed another violation of both the Chemical Weapons Convention and international humanitarian law. This must have consequences; such monstrous crimes cannot be allowed to go unpunished. This must be clear to all members of the international community. Even the regime’s supporters cannot turn a blind eye to these acts.”
On 7 November 2017, the Security Council debated the OPCW-UN JIM report, which Russia considered to be seriously flawed. It therefore proposed to modify the mandate and the JIM’s methodology. This was opposed by the United States, the United Kingdom and France. The foreign ministers of the three Security Council members prepared a public statement urging the Council to extend the JIM mandate. They were joined by the German Foreign Minister. The statement read in the relevant part:
“On October 26, the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism (JIM), a body established by unanimous decision of the United Nations Security Council (UNSC), concluded that the Assad regime is responsible for the use of sarin in Khan Shaykhun on 4 April 2017. We have full trust in the JIM’s findings, its professionalism and independence. The Syrian regime violated international law, including the Chemical Weapons Convention. We condemn this heinous act and demand that the Syrian regime immediately cease any and all use of chemical weapons and finally declare to the OPCW all chemical weapons that it possesses. […]
We agree that it is vital for the international community to continue to investigate cases where chemical weapons have been used in Syria. We therefore urge the United Nations Security Council to maintain the JIM’s investigative capacity. We also call on the OPCW Executive Council to take action in response to the JIM report to send an unequivocal signal that those responsible for the use of chemical weapons will be held accountable. […]
And there is more work for the JIM to do. The OPCW has now reported that a sarin attack ‘more than likely’ took place in Al Lataminah in Syria, just a week before and 15 kilometers from the sarin attack on Khan Sheikhoun. The attack it describes bears the hallmarks of the Syrian Regime.
A robust international response is now essential to hold those responsible to account, seek justice for the victims of these abhorrent attacks and to prevent such attacks from happening again. After such a report, the Security Council and all its members have a common responsibility to protect the international non-proliferation regime and live up to their previous commitments.”
However, in the Security Council meeting on 16 November 2017 no agreement on the extension of the JIM mandate could be reached. A Russian-backed draft resolution did not obtain the required number of votes, and the draft resolution submitted by the three Western Security Council members was vetoed by Russia. In the regular government press conference the next day, the cabinet spokesperson commented on the Russian veto as follows:
“The Federal Government regrets Russia’s renewed veto against the extension of the investigation into the use of chemical weapons in Syria, and we expressly regret this veto. It is the tenth Russian veto in the UN Security Council on the Syria dossier. From our point of view, yesterday’s veto is a particularly severe setback because it blocks the push for clarification of the responsibility for the use of poison gas in Syria. Therefore, this is a particularly serious veto.
From our point of view, those responsible for the use of chemical weapons in Syria must be held accountable. It is important that this impunity for such serious crimes by the regime in Syria ends. We owe this not only to the victims, but it is also in the interest of an international community that clearly outlaws the use of chemical warfare agents.”
The OPCW Technical Secretariat as the new instrument to identify the perpetrators of the use of chemical weapons in Syria
With the end of the mandate of the OPCW-UN JIM in November 2017, there was no longer any neutral institution that could identify the perpetrators of the use of chemical weapons. In Germany’s view, this allowed perpetrators to deny responsibility by disseminating propaganda and false information, and ultimately undermined the ban on chemical weapons. Germany and other States were therefore looking to the OPCW to identify those responsible for the use of chemical weapons. On 29 May 2018, Germany joined ten other States requesting the Director-General of the OPCW to convene a special session of the Conference of States Parties (CSP) to the CWC as soon as possible. The fourth special session of the CSP of the CWC was held in The Hague on 26-27 June 2018. Prior to his departure for The Hague, Minister of State Niels Annen declared:
“In view of the repeated use of these cruel weapons, we urgently need to strengthen the Chemical Weapons Convention. The OPCW must be in a position to investigate evidence regarding perpetrators of chemical weapon attacks and to identify them. We want to adopt an approach to this end at the Special Session. Those who deploy chemical weapons in Syria must be named and punished. Using such inhumane weapons must continue to be prohibited.”
At the special session, the United Kingdom, supported by Germany and 29 other States, submitted a draft decision entitled “Addressing the Threat from Chemical Weapons Use” which provided, inter alia, that
“the Secretariat shall put in place arrangements to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic by identifying and reporting on all information potentially relevant to the origin of those chemical weapons in those instances in which the OPCW Fact-Finding Mission in Syria determines or has determined that use or likely use occurred, and cases for which the OPCW-UN Joint Investigative Mechanism has not issued a report; and decides also that the Secretariat shall provide regular reports on its investigations to the Council and to the United Nations Secretary-General for their consideration”.
In a lengthy speech at the special session, Minister of State Annen pleaded for the adoption of the decision, saying:
“The global ban on chemical weapons use is under attack. Over the last years, this taboo has been broken time and again. The international community cannot stand idly by. It is our responsibility as States Parties to the Chemical Weapons Convention to react. It is our responsibility to ensure that adequate measures are in place to identify those responsible. […]
The banning of these horrendous weapons, codified in the Chemical Weapons Convention (CWC), is one of the great civilizational achievements of our time. The CWC is at the very centre of the international arms control, disarmament and non-proliferation architecture. It is, indeed, a tremendous success story. It made it possible to take the important steps towards the destruction of the vast majority of all declared chemical weapons. And it codified the norms prohibiting the development, transfer, possession, and, most importantly, the use of these weapons – in fact establishing a chemical weapons taboo.
This achievement is under grave threat. We are witnessing a serious recurrence of chemical weapons use. And we are failing to identify and to hold accountable those responsible.
[…] the perpetrators of such heinous acts enjoy impunity. They enjoy impunity because there is no longer any independent and impartial mechanism for attribution. As a consequence, the perpetrators cannot be identified and ultimately held accountable.
In 2016 and 2017, the OPCW/United Nations Joint Investigative Mechanism (JIM), mandated by the UN Security Council, performed the crucial task of identifying the perpetrators. We commend its professional and successful work which resulted in seven reports, attributing the use of chlorine gas and sarin to the Syrian regime – and the use of mustard gas to the so-called Islamic State.
We deeply regret that the mandate of the JIM was not renewed in November 2017. Since then, the UN Security Council has not managed to establish any new attribution mechanism. […] Those responsible for such horrific acts must be identified and held to account. […].
We need to enhance the capability and capacity of the OPCW […]. And, first and foremost, we need to enable the Technical Secretariat to identify the perpetrators of those chemical weapons attacks confirmed by the FFM. There is nothing in the Convention that prevents the Secretariat from fulfilling this task. The policy-making bodies of this organisation would then have to draw appropriate conclusions from the findings. […]
We are not proposing that the OPCW hold those identified accountable. Ensuring accountability would be a role for other institutions. What we are calling for is a solution that would enable the Secretariat to perform the technical work of independently and impartially investigating and identifying those responsible – and reporting on its investigations to the Executive Council, the Conference of States Parties and the UN Security Council for their consideration.
We firmly believe that the proposed draft decision tabled by the United Kingdom, co-sponsored by Germany and many others, includes the measures needed to reinforce the Convention and uphold its credibility at this critical time. We appeal to all States Parties to support and adopt this decision. […].”
The Decision Addressing the Threat of Chemical Weapons Use was adopted the same day by a vote of 82 votes in favour and 24 against. This meant that of the 152 States Parties present at the Conference, only 106 voted on the draft decision. Forty-six States Parties (mainly African, Asian, and Latin American States) did not vote. This raised the question of whether the decision had been validly adopted. According to Article VIII(B)(18) of the CWC, decisions on matters of substance must be taken “by a two-thirds majority of members present and voting” if no consensus can be reached. Rule 71 of the Rules of Procedure of the Conference of the States Parties of the OPCW defines the phrase “Members present and voting” as “Members casting a valid affirmative or negative vote.” The decision was thus duly adopted, as subsequently also confirmed by the Office of the Legal Adviser of the OPCW. In a statement issued on 27 June 2018, Federal Foreign Minister Heiko Maas welcomed the adoption of the decision, saying:
“We have sent an important message today: that anyone using chemical weapons must be identified and held to account.
Today, the States Parties to the Chemical Weapons Convention agreed by a large majority to allow the Organisation for the Prohibition of Chemical Weapons (OPCW) to identify those responsible for attacks involving chemical weapons. I am pleased that so many states have joined us in supporting the proposal. Today we have strengthened the Chemical Weapons Convention and the OPCW. It was not an easy process, but the outcome shows that fighting to uphold international regulations is worthwhile.”
Russia, on the other hand, which had voted against the draft decision, denounced the vote as illegitimate. On 28 June 2018, the Russian Ministry of Foreign Affairs issued a vitriolic statement which read in part as follows:
“As a result of political manipulations, direct bribery of a number of delegations and blatant blackmail, London and other pseudo-protectors of reinforcing the CWC managed to push through their odious draft decision, which will vest the Technical Secretariat of the Organisation for the Prohibition of Chemical Weapons (OPCW) with the extrinsic authority to identify the perpetrators of the use of chemical weapons in Syria. […]
We deem this decision illegitimate. We have to state that it is obvious that in taking the decision the Conference of States Parties stepped outside the scope of its mandate. […].”
The controversy over the Decision Addressing the Threat of Chemical Weapons Use resurfaced during the deliberations of the OPCW’s 2019 budget at the 23rd Conference of the States Parties in November 2018. The Draft Programme and Budget for 2019 proposed by the OPCW Director-General included €2.4m for the establishment of an Investigation and Identification Team (IIT) to identify the perpetrators of chemical attacks in Syria. Russia reiterated its position that the Decision entrusting the OPCW with attributive functions was illegitimate and went beyond the scope of responsibilities of the OPCW as a whole and the CSP specifically. Russia, together with China, therefore suggested to form “an open-ended group of experts (and include specialists on international law, first and foremost)” that would consider the consistency with the CWC of the activities and proposals of the Secretariat to implement the Decision. The Russian-Chinese initiative to stall the implementation of the Decision, however, was not successful. Of the 112 States voting on the proposal, only 30 voted in favour, while 82, including Germany, voted against it. The OPCW budget, on the other hand, was approved by a vote of 99 in favour and 27 against.
At the fourth special session of the CSP to review the operation of the CWC, which took place subsequent to the 23rd CSP, the German Deputy Federal Government Commissioner for Disarmament and Arms Control defended the Decision Addressing the Threat of Chemical Weapons Use against any claims of illegitimacy. At the meeting on 21 November 2018, he stated:
“Let us be very clear: only by implementing this decision will we regain credibility after the repeated use of chemical weapons during the last review cycle. We have the opportunity and are under the obligation to strengthen the OPCW and keep the clear and unambiguous stigma against chemical weapons intact. […]
And let me be clear on another issue: my Government is convinced that the adoption of the June decision was entirely legitimate and in accordance with the provisions of the convention and the rules of procedure. The number of States Parties attending the Special Session of the Conference of the States Parties alone sent the clear signal that an overwhelming majority felt the urgency to act on repeated violations of the Convention. Article Eight of the Convention unambiguously allows for decisions taken by vote if consensus is not possible.
For a strong global ban on chemical weapons, we need the strong support of the OPCW. Among other things, this means making arrangements to investigate instances swiftly and accurately, and to share information on chemical weapons use with United Nations investigative bodies.
We therefore welcome yesterday’s decision by the Conference of the States Parties on next year’s budget that provides for the necessary resources.”
On 30 November 2018, the Federal Foreign Office issued the following statement on the outcome of the fourth special session of the CSP review conference:
“We regret that following two weeks of intensive negotiations in The Hague it did not prove possible to reach consensus on urgently needed steps to strengthen the Chemical Weapons Convention (CWC) and the Organisation for the Prohibition of Chemical Weapons (OPCW).
Chemical weapons have been used repeatedly in Syria since 2013, brutally killing hundreds of people, including many children, and injuring thousands more. […]
Despite opposition from Syria and Russia in particular, it was possible to adopt a budget for the OPCW that will enable it to establish structures to identify those responsible for the chemical weapons attacks in Syria. However, we are disappointed that a few States Parties were not willing to identify violations of the CWC clearly and unambiguously and to support the necessary measures for further strengthening the CWC and OPCW. Germany and more than 50 other States Parties thus recorded their common position in a joint declaration:
‘We reiterate our strong commitment to work together for a world free of chemical weapons. We emphasise that any use of chemical weapons anywhere, at any time, by anyone, under any circumstances is unacceptable. We express the strong conviction that those responsible for the use of chemical weapons should be held accountable.’”
Pursuant to the CSP Decision Addressing the Threat of Chemical Weapons Use, the Director-General established the IIT as part of the OPCW Technical Secretariat. It functions under the authority of the OPCW Director-General. Germany supported the work of the OPCW in Syria in 2019 with around €1m. On 4 April 2019, Federal Foreign Minister Maas declared on the anniversary of the chemical attacks on the Syrian cities of Khan Shaykhun and Duma:
“The Assad regime has committed war crimes time and again, including with the use of chemical weapons against civilians […]. Those responsible for the use of chemical weapons must be held accountable for their crimes.
Together with many partners, we have managed to ensure that the independent experts of the Organisation for the Prohibition of Chemical Weapons can now identify the perpetrators of these attacks. Strengthening the existing multilateral agreements and instruments for the disarmament of chemical weapons around the world remains the Federal Government’s objective. […].”
Russia, however, did not resign itself to the OPCW’s new mandate and continued to challenge its legitimacy. It also started to call into question the professionalism and impartiality of the Technical Secretariat and to undermine the credibility of the OPCW. Germany defended both the OPCW Technical Secretariat and the 2018 CSP Decision. During the 24th session of the CSP to the CWC on 26 November 2019, the Deputy Federal Government Commissioner for Disarmament and Arms Control stated:
“We call on all States Parties to comply with this lawfully adopted decision and to contribute to its implementation, as it is their obligation under the Convention. Germany welcomes the establishment of the Investigation and Identification Team. We look forward to their first report being issued in due time.”
Germany also spoke out in favour of the IIT in the Security Council. At a closed Council meeting on the use of chemical weapons in Syria on 2 June 2020, the German representative stated:
“We should not deflect from these findings by discussing the mandate of the IIT again. We all know that the decision to establish the IIT and to entrust it with the mandate to identify those responsible for the use of chemical weapons in Syria was taken by a majority vote, and thus in full accordance with the CWC and the rules of procedure of the OPCW. This has also been confirmed by the Office of the Legal Adviser of the OPCW, as we all know.”
The reports of the OPCW IIT and the suspension of certain of Syria’s rights under the CWC
The IIT began its work in June 2019, focusing on the incidents in Ltamenah in Syria on 24, 25, and 30 March 2017. In its first report, published on 8 April 2020, the IIT concluded “that there are reasonable grounds to believe that the Syrian Arab Republic used chemical weapons” when the Syrian Arab Air Force dropped sarin and chlorine on the town. Following the release of the report, Federal Foreign Minister Maas stated:
“We welcome the publication today of the OPCW report on the use of chemical weapons in Syria in March 2017. This report is an important step as regards establishing the facts surrounding this despicable crime. The report states clearly that the attacks were carried out by air force units belonging to the Syrian regime. We are grateful to the OPCW for its professional and independent investigations under very difficult circumstances.
We have always made it clear that we condemn the illegal use of chemical weapons in Syria in the strongest possible terms. Such a blatant violation of international law cannot go unpunished.
It is now up to the international community to react immediately and to ensure that those responsible are held to account. The German Government will lobby urgently for this in the UN Security Council and at the OPCW. We will support all further endeavours aimed at investigating and prosecuting such crimes.
Our respect for the victims and our shared responsibility for the OPCW as a cornerstone of non-proliferation architecture make this incumbent upon us. Along with the 193 OPCW States Parties, we will continue to do our utmost to create a world free of chemical weapons for ourselves and future generations.”
For Germany, the report clearly showed that the “IIT investigations have been conducted with the utmost care, expertise, impartiality, and transparency.” Russia, on the other hand, tried to discredit the report, calling it “biased, politically motivated, factually inaccurate, extremely weak from a professional point of view, and technically unconvincing.” On 15 April 2020, Germany urged all States Parties “to refrain from further questioning the legality of the IIT, and rather contribute to the implementation of a legally binding decision” that addressed the non-compliance by Syria with its obligations under the CWC. Germany, together with other States, prepared a decision for the 94th OPCW Executive Council to react to the IIT findings. On 9 July 2020, the Executive Council adopted the “Decision Addressing the Possession and Use of Chemical Weapons by the Syrian Arab Republic” in which the Council condemned the use of chemical weapons by Syria as reported by the IIT. It also decided that Syria complete a number of measures within 90 days in order to redress the situation. Furthermore, the Council decided, that if Syria failed to redress the situation by completing the measures, to recommend to the CSP to adopt a decision to restrict or suspend Syria’s rights and privileges under the CWC, pursuant to Article XII (2) of the Convention. When Syria refused to take any of the actions requested by the Executive Council, on 25 November 2020 Germany joined 45 other States in sponsoring a draft decision entitled “Addressing the Possession and Use of Chemical Weapons by the Syrian Arab Republic” which provided for the suspension of Syria’s rights and privileges under the CWC, until it comes into compliance with the Convention.
Due to the Covid-19 pandemic, the draft resolution could only be voted on 22 April 2021. In the meantime, on 12 April 2021, the second report of the IIT was released designating again the Syrian Arab Air Force as the perpetrator of a chlorine gas attack on the city of Saraqib on 4 February 2018, affecting 12 named individuals. Following the release of the report, a Federal Foreign Office spokesperson said:
“Thanks to the professional and independent investigations by the Organisation for the Prohibition of Chemical Weapons (OPCW), the report published today on the use of chemical weapons in the Syrian town of Saraqib is an important contribution to the fight against impunity in the Syria conflict.
The report reaches the conclusion that the Syrian regime’s air force was responsible for the use of chemical weapons in Saraqib in February 2018. The OPCW has thus been able to attribute a further use of chemical weapons in Syria to the Syrian regime. We condemn these illegal uses of chemical weapons in the strongest possible terms. We firmly believe that such a blatant violation of international law must have consequences. Those responsible must be held accountable.
All OPCW Member States are now called upon to respond to these continued breaches by Syria of the Chemical Weapons Convention and to ensure adherence to it with the help of the available means it contains.”
The draft resolution provided, inter alia, for the suspension of Syria’s rights to vote in the CSP and Executive Council, to stand for election to the Council, and to hold any office in the organs of the OPCW. When it was finally put to a vote, it was adopted with 87 votes in favour, 15 against, and 34 abstentions. Germany considered the decision “an appropriate response by the Conference to the clear violation of the core principles of the Convention.”
Legality of the extension of the mandate of the OPCW Technical Secretariat
Germany was one of the driving forces behind the June 2018 Decision of the CSP expanding the mandate of the OPCW Technical Secretariat by asking it “to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic.” The Decision, however, was heavily criticised by the Russian Federation, which argued that attribution was not provided for in the CWC and went beyond the scope of responsibilities of the OPCW as a whole and the CSP specifically. Russia took the position that any change to the mandate of the OPCW had to be adopted in accordance with the procedures for the amendments of the CWC outlined in Article XV of the Convention. That is, any amendment to the CWC had to be submitted to a special Amendment Conference and could be adopted only if no State Party cast a negative vote – thus giving Russia a veto on any amendment.
Germany, on the other hand, argued “that the adoption of the June decision was entirely legitimate and in accordance with the provisions of the convention and the rules of procedure” but did not provide any legal explanation. It could be argued that the attribution mechanism established by the Decision is a means to ensure effective implementation of, and compliance with the CWC. According to the CWC, the CSP “shall oversee the implementation […] and […] review compliance with this Convention.” It shall “take the necessary measures to ensure compliance with this Convention and to redress and remedy any situation which contravenes the provisions of this Convention, in accordance with Article XII.” One of the measures foreseen in Article XII is the restriction or suspension of a State Party’s rights and privileges under the CWC until it undertakes the necessary action to conform with its obligations under the Convention. The CSP cannot effectively exercise its task to ensure compliance with the Convention without proper attribution arrangements in place as otherwise it has no way of knowing who is responsible for the use of chemical weapons.
As the principal organ of the OPCW, the CSP may “take decisions on any questions, matters or issues related to this Convention raised by a State Party or brought to its attention by the Executive Council.” The question of the identification of the perpetrators of the use of chemical weapons in Syria had been brought to the attention of the CSP by 31 States Parties. The CSP was also competent to request the Technical Secretariat to put in place arrangements to identify the perpetrators. The CWC expressly provides that the Technical Secretariat shall assist the CSP in the performance of its functions and carry out those functions delegated to it by the CSP. In particular, the Technical Secretariat shall prepare and submit such reports as the CSP may request, and provide technical support to it.
The attribution of the use of chemical weapons is a technical, assistive function which is within the mandate of the Technical Secretariat. Attribution of the use of chemical weapons is not the same as deciding on responsibility and taking measures to ensure compliance – that is still left to the Executive Council and the CSP based on the identification of the perpetrators by the Secretariat’s IIT.
While the CSP’s June 2018 decision may have been unwelcome to Russia politically and strategically, it was not illegal per se. Contrary to Russia’s view, the CSP decision did not create “a very dangerous precedent […] both for the Organisation [OPCW] and for the system of international law as a whole.” The decision was rather an expression of a more general phenomenon in present-day international relations: the use of not immediately obvious, so to speak “dormant” opportunities under existing treaties by the majority against the express will of the minority in order to further their own strategic aims and interests. The revocation of the consensus approach underlying many international agreements and the disregard for the position of the minority, while not illegal, is deepening the split between the different State groups and ultimately jeopardises the instrument of treaties as a means of international cooperation.
Category: Arms control and disarmament
DOI: 10.17176/20220627-172857-0
