OPCW and the Right Way to Write Down Wrongs

by Gleb Bazov

The Convention for the Prohibition of Chemical Weapons (the “Convention”) is an umbrella instrument predicated on extensive Annexes and the rules, guidelines and principles promulgated by the OPCW Technical Directorate to define the chemical weapons (“CW”) control and verification regime (the “CW Regime”).

This draft excerpt of an upcoming analysis of the August 21, 2013 CW incident in Ghouta, Syria considers the importance of the CW Regime, and, specifically, the rules governing investigations of CW use and verifications of compliance with the Convention (compiled as the Verification Annex to the Convention).

In addition to the largely cursory protocol created specifically for the UN Investigation Mission in Syria, the following parts of the Verification Annex dictate the requirements that any investigation of CW use in Syria must meet:

  1. Part II – General Rules of Verification; and,
  2. Part XI – Investigations in Cases of Alleged Use of Chemical Weapons.

Pursuant to Article 66 of Part II (Sub-Part H – Application of General Provisions), Part XI overrides Part II only to the extent the provisions of Part XI differ from the provisions of Part XI. Combining the Parts, the following regime emerges:

In respect of collection and testing of samples:

Part II – General Rules of Verification

Collection, Handling and Analysis of Samples

57. … samples shall be analysed in at least two designated laboratories. …

58. … shall compile the results of the laboratory analysis of samples … and include them in the final inspection report  … shall include in the report detailed information concerning the equipment and methodology employed by the designated laboratories.

Part XI – Investigations in Cases of Alleged Use of Chemical Weapons

Sampling

16. The inspection team shall have the right to collect samples of types, and in quantities it considers necessary. … The inspected State Party shall also permit and cooperate in the collection of appropriate control samples from areas neighbouring the site of the alleged use and from other areas as requested by the inspection team.

17. Samples of importance in the investigation of alleged use include toxic chemicals, munitions and devices, remnants of munitions and devices, environmental samples (air, soil, vegetation, water, snow, etc.) and biomedical samples from human or animal sources (blood, urine, excreta, tissue etc.).

In respect of conducting and employing interview data:

Part XI – Investigations in Cases of Alleged Use of Chemical Weapons

Interviews

21. The inspection team shall have the right to interview and examine persons who may have been affected by the alleged use of chemical weapons. It shall also have the right to interview eyewitnesses of the alleged use of chemical weapons and medical personnel, and other persons who have treated or have come into contact with persons who may have been affected by the alleged use of chemical weapons. The inspection team shall have access to medical histories, if available, and be permitted to participate in autopsies, as appropriate, of persons who may have been affected by the alleged use of chemical weapons.

In respect of preparing reports:

Part II – General Rules of Verification

G. Reports

62. … The report shall also provide information as to the manner in which the State Party inspected cooperated with the inspection teamDiffering observations made by inspectors may be attached to the report. The report shall be kept confidential.

63. The final report shall immediately be submitted to the inspected State Party. Any written comments, which the inspected State Party may immediately make on its findings shall be annexed to it. The final report together with annexed comments made by the inspected State Party shall be submitted to the Director General not later than 30 days after the inspection.

Part XI – Investigations in Cases of Alleged Use of Chemical Weapons

D. Reports

Procedures

23. The inspection team shall, not later than 72 hours after its return to its primary work location, submit a preliminary report to the Director-General. The final report shall be submitted to the Director-General not later than 30 days after its return to its primary work location. The Director-General shall promptly transmit the preliminary and final reports to the Executive Council and to all States Parties.

Contents

25. The final report shall summarize the factual findings of the inspection, particularly with regard to the alleged use cited in the request. In addition, a report of an investigation of an alleged use shall include a description of the investigation process, tracing its various stages, with special reference to:

(a) The locations and time of sampling and on-site analyses; and

(b) Supporting evidence, such as the records of interviews, the results of medical examinations and scientific analyses, and the documents examined by the inspection team.

26. If the inspection team collects through, inter alia, identification of any impurities or other substances during laboratory analysis of samples taken, any information in the course of its investigation that might serve to identify the origin of any chemical weapons used, that information shall be included in the report.

Defining the Scope of the Mandate and the Ambit of the Report

One lingering misconception about the ambit of the UN Report and the underlying investigation should be addressed and corrected at the outset. Many commentators were troubled by an apparent transgression of the UN Report against the scope of the mandate given to the inspectors.

Much has been made of the fact that the mandate of the mission was limited to the question of whether CW were used in Ghouta, Syria on August 21, 2013, rather than who used them. As a result, criticisms have been levied against the UN inspectors for attempting to calculate azimuths of the purported CW delivery vehicles – data that sparked a controversy when the Human Rights Watch (“HRW”) and the New York Times (“NYT”) claimed that these azimuths, when combined, pointed inexorably to a key Syrian military base.

Both HRW and NYT alleged that the coincidence of the azimuth data was the undeniable smoking gun pointing to the culprit. The UN inspectors were, in turn, blamed for exceeding their mandate and evidencing bias that tainted their impartiality.

The fact of the matter is that the Convention, and, specifically, Part XI of the Verification Annex, calls for exactly this type of information to be included in the final report of any investigation into the use of CW agents. Far from breaching their obligations, the UN inspectors seem to have complied with Verification Annex:

Part XI – Investigations in Cases of Alleged Use of Chemical Weapons

D. Reports

Contents

26. If the inspection team collects through, inter alia, identification of any impurities or other substances during laboratory analysis of samples taken, any information in the course of its investigation that might serve to identify the origin of any chemical weapons used, that information shall be included in the report.

Although Article 26 specifically speaks about “identification of any impurities or other substances during laboratory analysis of samples taken” as an example of the kind of information that must be included in a final investigation report, the operative part of the provision reads as follows:

If the inspection team collects … any information in the course of its investigation that might serve to identify the origin of any chemical weapons used, that information shall be included in the report.

The phrase inter alia¸ a common legal latinism, gives away the mention of “impurities or other substances” as one of the possible types of identifying information that may be collected in the course of an investigation and must be included in any resulting report.

The possible azimuths of CW delivery vehicles are another such category. What is more, azimuths are the kind of data that would be collected by a careful investigator, and, accordingly, the type of information that must be presented with the final conclusions.

The inclusion of azimuth data in the UN Report, in and of itself, is not a violation of OPCW protocols. The larger concern is whether the azimuth calculations, as performed by the UN inspectors, were accurate. A body of evidence collected by the community at the Who Attacked Ghouta? blog site suggests that the UN azimuth data is flawed. It is not the purpose of this limited note to go into the details of this debate. It would suffice to say, for the moment, that the UN inspectors may well have not been duly diligent in their analysis.

Another important question is whether all available identifying information has been included in the UN Report. Answers to these questions would not undermine the appropriateness of adducing azimuth data to the UN Report, but they may, upon further consideration, raise questions about the root causes of the reductionist manner in which data has been presented.

Dissecting the Laboratory Data

OPCW Verification Annex contains key requirements for the sampling, laboratory analysis and presentation of samples in any investigation report. The following are the requirements contained in Parts II and XI of the Verification Annex:

         Inspectors’ Powers in Collecting of Samples

(a)      the inspection team shall have the right to collect samples of types, and in quantities it considers necessary (Art. 16, Part XI);

(b)      State Party shall also permit and cooperate in the collection of appropriate control samples from areas neighbouring the site of the alleged use and from other areas as requested by the inspection team (Art. 16, Part XI);

(c)      Samples of importance in the investigation of alleged use include (Art. 17, Part XI):

(i)         toxic chemicals;

(ii)        munitions and devices;

(iii)       remnants of munitions and devices;

(iv)        environmental samples (air, soil, vegetation, water, snow, etc.); and,

(v)         biomedical samples from human or animal sources (blood, urine, excreta, tissue etc.);

(d)      The inspection team shall … be permitted to participate in autopsies, as appropriate, of persons who may have been affected by the alleged use of chemical weapons (Art. 21, Part XI).

        Use of Designated Laboratories

(e)      analysis must be performed by at least two designated laboratories (Art.57, Part II)
(to recall, Meselson and Robinson require that three designated laboratories be used, and further recommend verification of any results by an independent committee)

Contents of the Final Report

(f)        final report shall include:

(i)          description of investigation process, tracing its various stages (Art.25, Part XI);

(ii)         locations and time of sampling and on-site analyses (Art.25(a), Part XI);

(iii)        compilation of the results of laboratory analysis of samples (Art.58, Part II);,

(iv)         results of medical examinations and scientific analyses (Art.25(b), Part XI); and,

(v)          detailed information concerning the equipment and methodology employed by the designated laboratories (Art. 58, Part II).

A superficial consideration of the OPCW Verification Annex guidelines leads to a disconcerting conclusion that the UN inspectors failed the task they were assigned to do. There may have been some justification for not staying in Ghouta as long as it was necessary to perform a thorough investigation, but there is no excuse for failing to incorporate data and information specifically required by the applicable international law. Such an omission is difficult to excuse.

Failure to Secure Vital Samples

The first concern arises in respect of the UN team’s failure or refusal to retain the alleged CW delivery vehicles located in Ghouta. The OPCW Verification Annex imposes no limitation on the type or the quantity of samples that the UN inspectors could have requested, collected, transported to designated labs, and retained for analysis. Moreover, the relevant provision specifically nominates items such as “munitions and devices” and “remnants of munitions and devices” as “samples of importance.”

However, the UN Report contains no mention of analysis of the alleged CW delivery vehicles that were identified by the UN inspectors. In fairness, the Appendices to the UN Report refer to a variety of metal samples that were secured by the UN team. Nevertheless, an examination of the videos of the UN inspectors’ attendance in Ghouta makes it clear that the UN inspectors specifically refused to secure the CW delivery vehicles for further analysis and study.

Other than puzzling statements by members of the UN team that they were not permitted to transport the munitions outside Syria, no explanation has been proffered for this omission. Doubtless, if the Syrian government refused a reasonable request to analyze the suspected CW munitions off-site, this lack of cooperation would have (and should have) featured prominently in the UN Report. The UN Report contains no mention of such interference with the investigation.

Equally, despite extensive discussion of the participation of the Syrian opposition in the UN inspectors’ investigation, there is also no statement that the Syrian opposition refused a request by the UN team to secure the alleged CW delivery vehicles for further study.

The UN inspectors could have demanded custody of suspected CW weapons, and yet either made no such request to do so or have inexplicably omitted explaining why, and by whom, it was denied. We are left to wonder what exactly occurred behind the veil of silence.

Failure to Conduct Autopsies and Secure Dead Tissue

Equally as puzzling are the lack of autopsies and efforts to collect of dead tissue, whether animal or human. Leaving aside Angela Kane’s perplexing retort on Russia Today that living survivors are a better source of investigative data than the dead, the UN inspectors made no attempt to exhume victims of the Ghouta incident or to conduct autopsies of the deceased. The UN Report and public record contain no mention of any such request being made either to the Syrian government or to the Syrian opposition. Nor do we know the reason why.

Ms Kane’s comment is particularly baffling in the face of academic consensus that the bodies of those who died from exposure to Sarin present the best source of biomedical evidence of CW use (further commentary on this issue will be provided in a separate draft excerpt dealing specifically with CW and Sarin). Refusal to conduct autopsies or obtain dead tissue for analysis may have been a key error in the UN investigation of the Ghouta incident.

We are aware, however, that at least one dead animal was provided to the UN inspectors and taken away for further analysis. A BBC article describing the interactions between the UN team and several local activists makes mention of a dead chicken body being transferred into the custody of UN inspectors. Considering that dead tissue may be the best source of relevant evidence, it is difficult to understand why (1) no analysis of the available animal tissue has been performed, or, if it was, (2) no mention is made of such analysis in the UN Report.

Fatal Lack of Data in the UN Report

The paucity of relevant data in the UN Report is in direct violation of the requirements set out in the OPCW Verification Annex. Other than a cursory description of the investigation process, consisting primarily of an account of the movement of the UN team among the sites of the alleged CW attack, a record of locations and times of sampling and a summary of the results of the laboratory analysis, the UN Report contains little else.

It is puzzling why the UN Report does not include a “detailed information concerning the equipment and the methodology used by the designated laboratories,” as required by Article 58 of Part II of the OPCW Verification Annex. The omission of this critical information makes it impossible to conduct an independent review of the investigative process and the scientific methodology of the testing performed by the labs.

Paradoxically, rather than putting the laboratory results beyond scrutiny, failure to explain how the tests were performed makes the results of any such testing questionable. Thus, there is no means of understanding or explaining the obvious and palpable contradictions between the two labs in the testing of environmental samples. Similarly, the apparent unanimity in respect of biomedical testing of human samples is of little value without the corollary disclosure of the testing methodology that was used..

This draft excerpt is not meant to go into detail with respect to the chemistry and methodology of testing for CW agents. A discussion of these issues is forthcoming. It is critical to note, however, that the palpable lack of transparency underscores many other disconcerting aspects of the UN Report.

The Human Factor – Victims and Casualties

Although the use of CW constitutes a war crime and a crime against humanity, whether or not it results in casualties, both the survivors of a CW attack and the deceased offer vital and sensitive sources of relevant information. The OPCW Verification Annex entitles inspectors to unrestricted access to eyewitnesses, to conduct any necessary interviews and record relevant testimonies, as well as to participate in autopsies (Art.21, Part XI):

(a)      the right to interview and examine persons who may have been affected by the alleged use of chemical weapons;

(b)      the right to interview eyewitnesses of the alleged use of chemical weapons and medical personnel, and other persons who have treated or have come into contact with persons who may have been affected by the alleged use of chemical weapons

(c)      [the right of] access to medical histories, if available; and,

(d)      [the right to] be permitted to participate in autopsies, as appropriate, of persons who may have been affected by the alleged use of chemical weapons

As with other information collected in the course of an investigation, data collected through interviews, medical examinations, and examination of medical histories’ must form part of the final report (Art.25, Part. XI):

(a)      a report of an investigation of an alleged use shall include a description of the investigation process, tracing its various stages, with special reference to:

(i)          … the records of interviews;

(ii)         the results of medical examinations; and,

(iii)        … the documents examined by the inspection team.

The lack of required records, such as transcripts of interviews, specific and detailed accounts of medical examinations performed and descriptions of the medical records and other documentation reviewed by the UN team is a notable omission.

It bears mentioning that an overview of the literature considered by the UN inspectors in the course of preparing their report would have been very helpful. For one, it would have elucidated the reasons behind the troubling parallels, as identified by Subrata Ghoshroy, among the UN Report and other NGO and media publications that preceded it. Lack of full and frank disclosure substantiates and justifies allegations of bias and lack of impartiality.

General Observations, Information and Data

Other categories of information should also have been made available in the final investigation report. Such data would normally include:

(a)      information as to the manner in which the State Party inspected cooperated with the inspection team (Art.62, Part II);

(b)      differing observations made by inspectors (Art.62, Part II); and,

(c)      any written comments, which the inspected State Party may immediately make on [the] findings [of the final report] (Art.63, Part II).

Faced with lack of any information that would come under the rubrics (b) and (c), one is left to wonder whether or not:

(a)      the UN inspectors were unanimous in their observations and conclusions; and,

(b)      Syria was given an opportunity to comment on the UN Report and its findings.

Even if, technically, (c) above could be considered to be inapplicable to Part XI (alleged use of CW) investigations, it is hard to accept that, given the obvious chain of custody issues and concerns regarding the integrity of the evidence identified and sampled by the UN inspectors, there would be unanimity in all aspects of the UN Report among the members of the UN team. Disclosure of dissenting opinions would have given the credibility of the UN investigation and the UN Report a substantial boost.

Finally, the lack of specific information concerning the cooperation with the investigation by the Syrian government and the Syrian opposition, such as, for instance, which of the two sides refused the request (if a request was made at all) to secure the alleged CW delivery vehicles, makes it difficult to evaluate the constraints within which the UN inspectors were forced to operate. As with testing methodology, understanding operational constraints is vital to evaluating the reliability of an investigation and its results.

Conclusion

In the normal course of events, an investigation report suffering from the types of frailties obvious on the face of the UN Report would not be accepted by the Technical Directorate or the Executive Council. Moreover, it would be duly and successfully challenged by the responding State Party, forcing OPCW to start from scratch.

In the circumstances of the international uproar and indignation arising from the August 21, 2013 incident in Ghouta, many common-sense and unambiguous legal requirements were disregarded by the UN inspectors in preparing the UN Report. In a rush to deliver results, the rigors of scientific method and the requirements of procedural fairness (otherwise known as due process) were sacrificed in favour of expediency.

There is no viable legal framework in existence that trumpets the demands of expediency over the basic principles of fundamental justice and procedural fairness. The OPCW Convention and Verification Annex are no exception to this rule. They exist to facilitate a CW control and verification regime among relatively equal State Parties, each with an acknowledged entitlement to challenge the lack of substantive and procedural fairness.

As with many creatures of international law, OPCW’s utility is derived from the agreement of its State Parties to submit to its control mechanisms. The moment that a State Party or a potential OPCW member is denied the safeguards of procedural fairness inherent in the OPCW framework and the moment that scientific method is supplanted with blind faith in the integrity of testing laboratories is the moment that OPCW will lose its value to the world.

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