17 December 2013
Syria's Chemical Weapons: Is the UN Exceeding Its Mandate?
Do the plans to destroy Syria's chemical weapons stockpile overstep their mandate and even complicate existing international treaties and conventions? Bob Rigg believes so. In fact, the UN-sponsored plans are an open invitation to future troubles.
By Bob Rigg for openDemocracy
About ten days before the Hague-based Organisation for the Prohibition of Chemical Weapons (OPCW) was surprisingly awarded the Nobel Peace Prize, a Washington Post headline, alluding to its role in verifying and overseeing the destruction of chemical weapons production facilities in Syria, referred to it as an ‘obscure agency’.
The OPCW had led a secluded existence since 2002, when it controversially dismissed its fiercely independent Brazilian director-general, José Bustani. The International Labour Organisation’s Administrative Tribunal subsequently overturned this decision, finding that it violated fundamental principles of law for international organisations.
Bustani had inflamed the US, among other things by encouraging Iraq to accede to the Chemical Weapons Convention (CWC). Bustani’s spirited independence meant that the US could not trust the OPCW under his leadership to legitimise the intervention in Iraq so desperately craved by the neo-conservatives. John Bolton, the then undersecretary of state for arms control and international security, attended the session of the OPCW Executive Council which declined to support the US push to purge Bustani at that stage. Bolton famously said to Bustani: ‘Are you going to resign by midnight? OK, now we will do it my way’—before storming out of Bustani’s office, slamming the door.
US moves encouraging Syria to accede to the CWC now vindicate Bustani’s Iraq initiative of 2002.
The meeting in Geneva from September 12th to 14th of this year involving the US secretary of state, John Kerry, and Sergei Lavrov, Russia’s foreign minister, and their teams of chemical weapons experts was a remarkable turning point in relations between the US and Russia, initially in relation to chemical weapons in Syria.
Kerry ceased to be a dog of war and became almost a peacenik overnight. The warmth of interaction between the two erstwhile adversaries was remarkable, inspiring even the dour Lavrov to dream aloud of a possible zone free of weapons of mass destruction in the middle east. Under the cover of the CWC the US was able to distance itself from the ill-considered consequences of its own belligerence, and even to present itself as a peace-maker.
Because Syria has acceded to the CWC and has also, so far, fully complied with its exacting declaration, inspection and destruction requirements, the Syrian government’s standing in the international community has been enhanced. The large-scale use of chemical weapons against Syrian civilians, recently the source of loud condemnation, has already been enveloped in political amnesia.
In the meantime, large numbers of Syrian civilians continue to kill and be killed by conventional weapons used by all sides to the conflict, with Syria’s large displaced and refugee populations living amidst acute misery, insecurity and hardship. However, irreconcilable divisions amongst the rebel groups and the recent weakening of Saudi Arabia’s traditional alliance with the US may well mean that even a united front of Russia and the US will be unable to impose peace on a fractious and impenetrable environment.
Notwithstanding the international community’s public protestations of concern for the humanitarian disaster that is Syria, it has donated remarkably little humanitarian aid to Syria’s battered and bruised civilian population—not merely in Syria, but also in Lebanon, Jordan and Turkey.
A powerful groundswell of public opinion throughout the US and Europe, sustained by weariness with the devastating political, social and economic cost of foreign wars, brought Congress, the UK Parliament and the French National Assembly to heel. Their abject failure to achieve the original stated objectives of successive foreign wars had stimulated the internationalisation of sectarian terrorist activity, alienating broad cross-sections of public opinion across borders and traditional party lines. The US ‘war on terror’ has actively stimulated international terrorism, which is now far stronger, more sophisticated and more menacing than when the war was initiated.
Although the UN Security Council (UNSC) is maintaining a watching brief over OPCW involvement in Syria, in the words of Lavrov the OPCW is the lead organisation. This means that OPCW inspections are spared the customary byzantine infighting of the UNSC and can proceed smoothly, in accordance with the CWC.
The UNSC resolution 2118 on Syria however requires the OPCW to act in violation of the CWC in several important respects. Article XII of the CWC states that only the Conference of the States Parties may, in consultation with the Executive Council, bring cases of particular gravity to the attention of the UNSC, whereas the UNSC resolution authorizes the Executive Council alone to do this. This disenfranchises the Conference of the States Parties, the only OPCW policy-making organ representing the views of all 190 member states.
Furthermore, the UN recently approached Norway, Albania and Belgium, inviting them to destroy large quantities of Syrian chemical weapons on their territory. This was in direct contravention of Article I(a) of the CWC: ‘Each State Party to this Convention undertakes never under any circumstances: (a) to develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone.’
Norway has declined this UN invitation. Growing public anxiety in Albania about the risks associated with the destruction of large quantities of chemical agents recently scuppered this second illegal proposal of the UN, which currently lacks the enormous budget that would be required for the destruction of chemical weapons in accordance with the stringent environmental and safety standards prescribed by the CWC.
Leaving aside the question of legality, their secure transfer would also be a hazardous, costly and politically combustible exercise, as has been foreshadowed in Albania. The desperate option of destruction at sea is under consideration, although this would also violate article 1(a). Kerry has already indicated that no OPCW member state would run the risk of guaranteeing the safe and secure passage of chemical weapons from many different locations in war-torn Syria.
Even if funding for the responsible destruction of Syria’s large chemical-weapons arsenal were miraculously to appear, it cannot be destroyed in Syria in the midst of a raging civil war. But if Syria transfers its chemical weapons from its territory or to international waters, it will be in violation of article 1(a). If the Conference of the States Parties was unwilling to punish such a major violation of the CWC, any claim it might have to international credibility would be shattered. The OPCW would have to return its Nobel Peace Prize, with an apology. If the OPCW were formally to renegotiate the relevant parts of the CWC before any such transfer took place, this might however offer a way forward.
Does the UNSC have the legal authority to undo elements of a multilateral disarmament treaty painstakingly negotiated over decades? Is the UNSC, a political body crushingly dominated by the US and the remaining four permanent veto-wielding members, legally empowered to amend, qualify or even nullify the application of international treaties? Does the UNSC have the power arbitrarily to amend the application of any international treaty, in the absence of consultation with the treaty signatories and the UN General Assembly? Has the UNSC seriously overreached itself on this occasion?
And, if the OPCW is acting illegally in complying with its UNSC mandate, what are the implications of this for the OPCW itself?
OPCW's Nobel Peace Prize
The Nobel committee’s press release revealed an in-depth awareness of major issues confronting the OPCW. While singling it out for much praise, the committee targeted the US and Russia for pointed criticism: ‘Certain states have not observed the deadline, which was April 2012, for destroying their chemical weapons. This applies especially to the USA and Russia.’ While loudly praising the OPCW’s chemical weapons destruction efforts, the Nobel committee also seized on this opportunity to warn the international community of major unresolved issues regarding the integrity of the CWC.
The drafters of the convention, which was opened for signature in 1993, were absolutely determined to rule out any possible slippage in relation to the destruction of chemical weapons stockpiles on the territory of all States Parties. They included in the CWC a clearly defined deadline for the final destruction of all chemical weapons stockpiles. Once the treaty entered into force in April 1997, the US and Russia knew that they had to complete destruction by April 2012 at the very latest. Yet while they applied remorseless pressure on all other member states to complete destruction by the final deadline, they allowed themselves to slip further and further behind.
The European Union has stated that it ‘attaches great importance to timely destruction of chemical weapons by the possessor states within the deadlines laid down in the Convention’. The UN secretary general’s High-level Panel on Threats, Challenges and Change ‘reiterated the importance of chemical weapons possessor states destroying their stockpiles by 2012’. Both these statements were made several years before the final deadline.
As recently as January 2013 the US State Department claimed that Russia’s declaration of its own chemical weapons facilities was ‘incomplete’. In 2001 the State Department had gone one step further, alleging that Russia’s declaration was ‘incomplete with respect to chemical weapons production, development facilities and chemical agents and weapons stockpiles’. As was the case during the Cold War, it is at least possible that Russia or the US (or both) is secretly advancing its own chemical-weapons capability. The US and Russian failure to respect the final-destruction deadline fuels this kind of speculative anxiety, undercutting the confidence that was meant to be at the heart of the convention.
The CWC, originally envisaged as a universal instrument, has in practice assumed a discriminatory character—one rule for the major possessors and another for the rest. The CWC emphasises, in part IV (A), paragraph 26, that ‘in no case shall the deadline for a State Party to complete its destruction of all chemical weapons be extended beyond 15 years after the entry into force of this Convention’. Furthermore, article XXII of the CWC, on reservations, states simply: ‘All articles of this Convention shall not be subject to reservations.’
In granting the US and Russia leave to continue to destroy their chemical weapons well beyond the final-destruction deadline of April 2012, the decision-making organs of the OPCW were themselves violating a cornerstone requirement of the very convention whose integrity they are called upon to safeguard.
As is the way with UN organisations, the official reports and documents of the OPCW gloss over this controversy of central relevance. Many statements by individual delegations and regional groups in the years before the final-destruction deadline testify, however, to a vigorous internal debate that was ultimately—and heavy-handedly—quashed by the US State Department, with Russia riding on its coat-tails. Since the US power play enforcing the dismissal of Bustani, the State Department has tended to call the shots on questions of importance within the OPCW.
The basic concern was that the OPCW would lose credibility if it was seen not to comply with one of the CWC’s core obligations. There was also concern that, if the US and Russia did not fulfil a key responsibility, how could the OPCW credibly contend that other member states should fulfil each and every convention requirement?
But the dissenting member states and regional groups were unwilling to incur the wrath of the US and, to a lesser extent, Russia, and they ultimately threw in the towel, endorsing reports and formulations disguising the fact that the OPCW had fatally compromised itself. It was fine for the emperor to wear no clothes, provided that this was concealed from the international public. Although the Nobel committee courageously drew attention to this political sleight of hand, its warning has until now gone unnoticed and unheeded.
At present, Israel has a monopoly on nuclear weapons in the middle east. Once the destruction of Syria’s chemical weapons is complete, Israel will enjoy a near regional monopoly over a second weapon of mass destruction—chemical weapons. In addition to Israel, Egypt is the only regional power with a chemical-weapons capability.
The military capability and cohesion of Syria’s army has proved quite remarkable amidst a sectarian civil war—in spite of the fact that, although most of the military leadership is drawn from the ruling Alawite minority, most regular troops are Sunni. Nevertheless, the capacity of the Syrian army to play a major role in any regional conflict involving Israel and Iran, for example, has undoubtedly been seriously degraded.
Even if peace is agreed on, the terrible destruction of Syria’s infrastructure and productive capacities, and the flight into exile of many highly qualified Syrians, mean that, like Iraq, Libya and Afghanistan, Syria will be an economic basket-case for decades to come. Syria has effectively ceased to exist as a strong unified state, further contributing to the balkanisation of the Middle East, thereby strengthening the hand of Israel and its allies in the long term. Any weakening of Syria will also be seen by Saudi Arabia and its Sunni allies as a significant blow against Iran.
Biological weapons are another elephant in the middle-eastern space. Amidst the cacophony of voices calling for respect for international norms regarding weapons of mass destruction, no one is talking of Syria’s arsenal of biological weapons or those of Israel and Egypt. What will be done to destroy the biological weapons of these three states?
And although the world has become a geopolitical chat room about nuclear weapons which, everyone agrees, Iran does not possess, Israel’s large nuclear arsenal is deemed to be an unsuitable subject of polite conversation in the west. Lofty rhetoric about the need to reaffirm international standards against weapons of mass destruction has temporarily put WMD disarmament back on the regional map.
Israel is for WMD disarmament in Syria and Iran but not in Israel. Russia and the Arab League have tried to revive international interest in a conference on a WMD-free middle east but have seen their efforts to promote this through the IAEA frustrated, as usual, by western opposition. The west’s quiet determination to block any real progress towards a WMD-free zone in the Middle East, a cause that has been strongly supported by the Arab League and Muslim states over many years, has shown no sign of wavering in the context of Syria. The west will continue to insist on confining the doctrine of regional disarmament to Syria and Iran alone, excluding Israel. This partly explains why Saudi Arabia is displaying such intense dissatisfaction with the US and the west at present.
Syria has made visible the increasingly acute tensions hitherto latent in the US-Saudi relationship. Saudi Arabia has been increasingly dissatisfied with US positions on Egypt, Bahrain, Syria, Iran and a WMD-free middle east. The Saudis have felt compelled to come out of the closet. They are using their money and influence to openly advance the cause of their radical and intolerant variant of Wahhabism in Syria, throughout the middle east and in countries as far afield as Afghanistan, Pakistan and Indonesia. The Saudi government, Saudi intelligence and extremely well-endowed ‘charitable’ organisations work together on this. This is bringing Saudi Arabia into conflict with the US and Iran and ultimately with Israel and the west.
It is conceivable that, once the dust has begun to settle in Syria, the west may begin to call for the destruction of chemical and biological weapons in Egypt, another example of what in western eyes is an unstable Muslim state that is casting off the shackles of the west. Only non-Muslim states such as the US and Israel, it would seem, with their traditions of oppression and surgical use of lethal force, have what it takes to make fair and appropriate use of WMD.
It seems appropriate to recall that, within the past 12 years, UN inspectors have confirmed or overseen the destruction of the chemical-weapons arsenals of two middle-eastern states—Iraq and Libya—and that, notwithstanding western assurances of commitment to democracy, peace, freedom and justice, the governments of both these countries were subsequently violently overthrown by the west, to be replaced by dysfunctional and corrupt political systems, damaged and destroyed infrastructure and endemic conflict and systematic human-rights abuse. While Russia and the US are in agreement about Syria, it is unlikely to share that fate. But if these two states fall out, and are at loggerheads about Syria, what will happen then?
For additional reading on this topic please see:
Agent of Change? The CW Regime
Syria and the OPCW: Taking a Stock of the Situation
Elimination of Chemical Weapons Stockpiles: Lessons for Syria
Bob Rigg is former senior editor, Organisation for the Prohibition of Chemical Weapons and former chair, NZ National Consultative Committee on Disarmament.