Russia recently used a series of Security Council vetoes – the final one last week – to kill an international body investigating a gruesome series of chemical attacks in Syria.
The move came not long after the Joint Investigative Mechanism (JIM), a body launched in 2015 by the UN and the Organisation for the Prohibition of Chemical Weapons (OPCW), accused President Bashar al-Assad’s Moscow-backed government of using sarin, a banned nerve gas, in an April attack that reportedly killed dozens in the city of Khan Sheikhoun.
Russia’s actions have enraged al-Assad’s Western critics, who accuse the Syrian leader of secretly stockpiling chemical weapons in contravention of UN resolutions, and who now want to deliver accountability by other means.
But that will be no easy task. Opposition sources already report that civilians were exposed to chemicals in the last few days in besieged eastern Ghouta. If another major chemical attack were to take place in the absence of a broadly accepted investigatory mechanism, more than one foreign actor may be tempted to take unilateral action.
How did we get here?
The now-defunct JIM is just the latest incarnation of protracted and tortuous efforts to probe the use of banned weapons in Syria since the war there began in 2011.
In 2013, a US-Russia agreement allowed the OPCW, the 192-nation implementing body of the Chemical Weapons Convention, to verify Syria’s compliance with that treaty, including a promise by al-Assad to surrender all chemical weapons.
But investigators never really trusted al-Assad to live up to his side of the deal, and various other probes (see the timeline below for details) have been unable to assign blame for chemical attacks, until an August 2015 unanimous Security Council resolution created the JIM to do just that. However, when the JIM concluded that the Syrian government had indeed used chlorine gas on three occasions, a Russian and Chinese veto prevented the Security Council from acting.
The latest crisis was set off after the widely publicised sarin attack in Khan Sheikhoun on 4 April 2017. The US blamed al-Assad’s government for releasing the nerve agent and responded, without waiting for a JIM verdict, with a cruise missile strike on a Syrian air base. As it had with previous incidents, Damascus dismissed Khan Sheikhoun as a false flag attack. Russia and Iran also insisted that al-Assad was innocent, though they couldn’t agree on a single narrative of what had actually happened.
In June, an OPCW fact-finding mission report determined that the nerve agent sarin had indeed been used in Khan Sheikhoun, and in October, the JIM concluded that it had been released by a Syrian government jet.
Its investigations had “found nothing to prove that the incident had been staged. And when I say nothing, I mean nothing,” JIM head Edmond Mulet, a Guatemalan diplomat, told the Security Council in response to Russia’s criticisms.
The Russians would have none of it. With the JIM’s mandate up for renewal before 17 November, Moscow threatened to block continued investigations unless the rest of the Security Council agreed to reject the JIM’s Khan Sheikhoun probe and reorganise the mechanism to focus on non-state actors.
Moscow then repeatedly used its veto to block mandate extensions on 24 October, 16 November, and 17 November. Russia’s actions were harshly criticised, and in the final vote, only Bolivia could still bring itself to vote with Russia, while China abstained. Even Moscow-friendly Kazakhstan voted with the pro-extension camp.
It had taken three Russian vetoes, but the UN’s chemical weapons investigation was finally dead.
Can the JIM be replaced?
There are apparently still efforts underway to resurrect the JIM, but, for the time being, the Security Council no longer stands behind any investigation into chemical attacks in Syria, and the American-Russian arrangements so painstakingly negotiated between 2013 and 2015 have collapsed.
Still, this doesn’t mean no one will look into the issue. Western diplomats told IRIN that they are searching for alternative ways to push back against Moscow’s stonewalling and establish a mechanism for attribution and accountability.
Of course, the International Criminal Court was set up to handle cases just like this one, but it is unlikely to get involved with Syria anytime soon. The court only has jurisdiction over its 123 member states – which don’t include Syria – or over cases referred to it by the Security Council, where Russia would use its veto.
So states determined to pursue accountability must seek other ways to press their case. Their options include the OPCW, some UN institutions, national legal systems, and unilateral punitive action.
The OPCW’s limited room for manoeuvre
The OPCW is a mostly technical body that prefers to operate by consensus, but its 41-nation Executive Council can take decisions by majority vote; unlike in the Security Council, there are no vetoes. Previous votes in November 2016 and April 2017 showed that there is very little support within the council for the pro-Damascus camp.
In other words, it’s possible that the OPCW Executive Council could overrule Russian-Iranian protests and propose or endorse new mechanisms for accountability.
As it happens, the OPCW’s top decision-making body, the 192-nation Conference of States Parties, is also scheduled to meet next week. Although that meeting is not directly related to the chemical weapons crisis in Syria, it “can’t ignore Syria’s continued non-compliance,” says Gregory Koblentz, a nonproliferation expert at George Mason University who spoke to IRIN last week.
But the OPCW is a confrontation-averse organisation, and many of its member states seem unwilling to take sides in what they have come to regard as an American-Russian dispute reminiscent of the Cold War.
What’s more, accountability is no longer everyone’s chief concern. With al-Assad now likely to stay in power in Syria, long-term non-proliferation and containment goals increasingly overshadow the shorter-term quest to punish war criminals. Many nations are more interested in safeguarding future OPCW access to Syria than in stirring up a fight over past attacks.
Western officials have made it clear to IRIN that they see value in the OPCW’s relationship with Damascus, even as they believe al-Assad is cheating. They argue that there is no alternative way to monitor Syria’s military-research sector and that a continued presence may help detect future large-scale rearmament. They also point to incremental concessions by the Syrian side. In September 2017, for example, the Syrian foreign ministry finally admitted that some of its laboratories had undertaken chemical weapons research, after four years of denial.
A Swedish diplomat compared the situation with the Iranian nuclear talks – a slow and often frustrating process where years of contact eventually did bring about results.
“First you would get nothing, but then one day before a meeting you would often receive a large amount of information that may not have been what you had asked for, so that Iran would be able to claim at the meeting that they were cooperating. That process went on for a very long time, and then a deal was finally struck when the situation was politically ripe for it. What’s important is that you report clearly about the difficulties you face,” the diplomat told IRIN. “That’s the way to do it, not to break contacts.”
The United States, too, wants to preserve the OPCW’s relationship with Syria. “I think it’s a very difficult balance and I think it’s important to try to keep going and to try to keep supporting these mechanisms that have a lot of international buy-in and support from the international community, including from us,” a State Department official told IRIN.
In any event, the OPCW has limited means to pressure Damascus. The Executive Council or Conference of States Parties could vote to restrict the Syrian government’s participation and access to information within the OPCW, but those are hardly stinging sanctions. More likely, the organisation's main usefulness to al-Assad’s critics would be to blame and shame, and, perhaps, to refer Syrian noncompliance with the Convention back to the UN with a recommendation of measures to be taken outside the OPCW.
Ways around the UN veto
While Russia’s veto makes a dead end of the Security Council, the UN offers several other avenues to accountability. None are straightforward.
In August 2011, the UN Human Rights Council set up a Commission of Inquiry (COI) to investigate human rights abuses in Syria. Over the past few years, this has run its own chemical arms probe and concluded, separately from the JIM, that al-Assad’s air force was behind the Khan Sheikhoun massacre. Its investigators will surely continue to look into these matters, but the Commission of Inquiry operates without Security Council support and Damascus can boycott it without repercussions; indeed, Syrian authorities have denied its members permission to enter Syria for six years running.
There is also the Secretary-General's Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons, developed in response to gas attacks during the 1980-1988 Iraq-Iran war. It allows the UN chief to form his own investigative team made up of OPCW scientists and other experts, on request from a member state.
The mechanism was used to investigate Syrian chemical attacks in 2013, and, although it was not mandated to assign blame at the time, there is nothing to prevent the secretary-general from asking it to name perpetrators in the future. In practice however, the UN system’s cautious and consensus-seeking culture may get in the way, and Damascus could also simply ignore it as long as Russia continues to disable the Security Council.
Last but not least, the UN General Assembly recently created the International, Impartial and Independent Mechanism, or IIIM for short. Led by the French war crimes investigator Catherine Marchi-Uhel, the IIIM - which is still not operational - will be tasked with collecting, preserving, and analysing evidence of human rights violations in Syria, so as to facilitate future trials in international or national courts.
While international trials will be difficult to organise over Russian objections, some European nations have legal systems that allow them to try foreign war criminals not present on their soil. In March 2017, for example, a Spanish judge opened a case against Syrian officials accused of kidnapping, torturing, and murdering the brother of a Syrian refugee. The IIIM was set up to facilitate cases of precisely that sort, against both the Syrian government and its opponents.
IRIN has learned that some European nations may respond to Russia’s decision to shut down the JIM by funding efforts to collect evidence on chemical attack cases for filing with the IIIM. This would allow gas attack survivors, refugees, and activist lawyers to build cases for prosecution in European courts.
Even if no one is likely to be extradited from Syria to face charges, the resulting slow drip of arrest warrants and Interpol alerts 5, 10, and 15 years down the line could create a host of legal irritants for the Syrian leadership, and it would complicate al-Assad’s long-term ambition to rebuild ties with former trading partners in the EU.
But that’s as far as it is likely to get. The OPCW, the UN, and various national legal systems can all pursue the perpetrators of chemical attacks in Syria to an extent, but none has the unimpeded might of the Security Council at its back. Still, said a Western diplomat in an interview with IRIN early this month, “some accountability is better than no accountability.”
A shift toward unilateralism
Hopes for Security Council enforcement of the ban on chemical weapons have now been utterly dashed by Russia’s vetoes, and al-Assad’s critics warn it could lead to an escalation of gas attacks. “We have unleashed a monster here”, the French UN envoy told the Security Council.
But the political vacuum could also tempt some Western states to engage in quicker and more drastic unilateral action, now that there is no longer a UN process to wait for or hand responsibility to. Immediate expansions of the EU’s financial sanctions are likely in the case of new nerve gas allegations, diplomats say, and both the United States and France have vowed to launch air strikes against anyone who again uses chemical weapons in Syria.
In the Security Council on 16 November, Washington’s UN envoy Nikki Haley confirmed that the threat of direct retaliation remains on the table.
“Russia has destroyed our best tool for attributing these attacks, but it is not our only tool to end this barbaric practice,” Haley told the council, name-checking the COI and the IIIM, but also warning that her government was prepared to repeat the cruise missile attack it launched last April. “We will defend the international standard against chemical weapons use. It would be wise for the Assad regime to heed this warning.”
Last but not least, there is a wild card: Israel. Earlier this year, an Israeli official told IRIN that his government had “several basic concerns” in Syria, including that there should be no spill-over of violence, no Iranian presence, no transfer of advanced weapons to Hezbollah, and “that the international community should ensure that no chemical capabilities are left in Syria.”
As the Security Council and the OPCW lose control over the Syrian chemical weapons issue, Israel is more likely to lean forward to manage the problem on its own terms.
The Israeli military has hit dozens of targets inside Syria over the past six years, but it was only in September 2017 that the Israelis struck a facility thought to be involved with Syria’s chemical arms programme. Although al-Assad’s government protested vehemently, Russia, which is kept informed through a hotline with the Israeli military, had apparently decided to let the attack proceed and did not activate its air defence umbrella.
Without international agreement on how to handle chemical weapons in Syria, it has become even harder to predict the course of the conflict. The only certain thing is that this question will be with us for a long time to come.
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