Preventing Chemical Weapons: Arms Control and Disarmament as the Sciences Converge – Key Recommendations

 

 

Preventing Chemical Weapons: Arms Control and Disarmament as the Sciences  Converge –
Key Recommendations for the 4th Chemical Weapons Convention Review Conference and Beyond[1]

 

By Michael Crowley, Ralf Trapp, Malcolm Dando and Lijun Shang

September 2018

  

Introduction

 The chemical and life sciences, and associated disciplines notably nanoscience and nanotechnology, are in the midst of a period of rapid and revolutionary development and convergence that will undoubtedly bring societal benefits but have also potentially malign application.

Concerns of such technological misuse are exacerbated by the unstable international security environment and the changing nature of armed conflict, which could fuel a desire by certain States to retain and use existing chemical weapons, as well as increase State interest in creating new weapons; whilst a broader range of actors – including States, armed opposition groups, terrorist and criminal organisations – may seek to employ diverse toxic chemicals as improvised weapons. Stark indications of the multi-faceted dangers we face can be seen in the chemical weapons attacks against civilians and combatants in Iraq and Syria, and also in more targeted chemical assassination operations in Malaysia and the UK.

The forthcoming quinquennial Chemical Weapons Convention (CWC) Review Conference, with its explicit mandate to examine long-term issues of concern to the Organisation for the Prohibition of Chemical Weapons (OPCW) regarding implementation of the CWC in a strategic manner, and to “take into account any relevant scientific and technological developments”[2], is clearly the most appropriate forum for the CWC States Parties collectively to review the nature and implications of the rapid developments in and convergence of the chemical, life and associated sciences, and establish appropriate measures to prevent their misuse. As the CWC States Parties collectively examine these issues prior to and during the Review Conference, and undertake negotiation of a Final Document, we recommend that the utility of the following policy options should be considered:

 

Ensuring CWC Universalisation and Complete Destruction of all Existing Chemical Weapons

 Achieving full universality of the CWC will require recognising and understanding the specific political and security context that has prevented the four remaining non-Party States – Egypt, Israel, North Korea and South Sudan – from joining the Convention. Consequently, the OPCW should design a targeted universalisation strategy for each State setting the Organisation’s activities within the broader policy and security framework for that State, and coordinate its actions with other relevant actors, including key Member States, the United Nations (UN), and regional organisations.

The primary focus of the OPCW in the short term must be to complete the ongoing tasks of eliminating past chemical weapons (CW) programmes, including the characterisation and elimination of any CW programmes of the remaining States not party once they join; the completion of the outstanding destruction and conversion activities of declared CW stockpiles, development and production facilities; and the resolution of concerns regarding possible undeclared stockpiles and production facilities.

With the completion  on 27 September  2017 of the verified destruction of all declared Russian Federation chemical weapons stockpiles (totalling nearly 40,000 agent-tonnes), and that of Libya in January 2018, full attention must now be given to ensuring that the delayed and subsequently re-scheduled verified US destruction of its chemical weapons stockpiles (comprising 27,800 agent-tonnes) is completed, in a safe and environmentally responsible manner, by the planned US target date of 2023. Furthermore, the OPCW must investigate and address any concerns regarding potential undeclared chemical weapons activities, such as the alleged development, stockpiling and use of Novichok weapons.

Although the OPCW-UN Joint Mission in Syria successfully removed and destroyed all declared chemical weapons stockpiles, there are continuing concerns that the Syrian Government did not provide the UN and OPCW with full and accurate details of its chemical weapons programme and stockpiles.  The OPCW through the work of its Declaration Assessment Team (DAT) has already successfully clarified a few issues resulting in a number of additional facilities and activities being declared by the Syrian Government, yet significant unanswered questions remain.  This process must be continued until all uncertainties are fully resolved and this should be followed by the complete verified removal and destruction of any remaining chemical weapons stockpiles and the disarmament of any production facilities discovered.  In addition, the OPCW must continue investigations conducted by its Fact-finding Mission (FFM) into allegations of the use in Syria of sarin and improvised chemical weapons employing chlorine and other toxic chemicals. Where evidence of the development of such chemical weapons or other activities in breach of the Convention comes to light in Syria, the OPCW must act swiftly to halt such activities. All evidence of such activities must also be secured so that the perpetrators of such chemical weapons attacks can be identified as required by the newly-adopted OPCW attribution mechanism in accordance with decision C-SS-4/DEC.3, any UN-mandated investigation or other appropriate mechanism. Full cooperation in these processes must be given by the Syrian Government and all parties to the conflict in Syria. If the outstanding issues under its purview cannot be addressed and resolved within the OPCW, the Organisation should bring the unresolved matters to the UN Security Council  or the UN General Assembly for their action.

However these unresolved issues also pose more fundamental questions. The different ad hoc mechanisms established by the OPCW (DAT and FFM) are a sign of the need for pragmatic and flexible application of the provisions and principles of the CWC to a politically highly charged context. The standard tools of the Convention – consultation, cooperation and fact finding including challenge inspection, and investigations of alleged use of chemical weapons – were seen as politically too sensitive under the circumstances to be invoked, and ad hoc mechansims were negotiated with the Syrian government instead, under the general authority of the Director-General and sanctioned by the Executive Council. But there is a penalty for relying on ad hoc solutions: whilst the rules of the Convention have been painstakingly negotiated and form part of the Convention, the rules of engagement for ad hoc mechanisms are open to interpretation, and the standards used in the assessment of investigation results are not agreed. The conclusions of such investigations, which of course have political ramifications, are largely left to the Technical Secreariat to defend against any criticism, including by States Parties that have stakes in the matter. The price to be paid for flexibility and adaptability is that the standards of proof are not agreed, that procedures must be negotiated with the States Parties most concerned or involved, and that conclusions are open to challenge. There therefore is perhaps a limit for how much the OPCW can rely on ad hoc arrangements in lieu of using the compliance assurance mechanisms of the Convention itself.

A related question is how the purpose of such an investigation is defined. The purpose of the Convention’s compliance assurance mechanisms is not to conduct fact finding per se, but to create conditions that would compel States Parties to re-establish full compliance as quickly as possible. The Executive Council has a crucial role to play in this, and quiet diplomatic engagement of key actors is important to find common ground for how best to resolve a compliance matter. The decision on the elimination of the Syrian chemical weapons in 2013 was an example for how the necessary political support and unity can be achieved through effective diplomacy; the discussions in the Executive Council of the findings of the FFM and the JIM are examples for how the absence of such efforts can risk debates ending in divisiveness, political cross-fire and an increasing inability to act collectively.

As the Review Conference assesses the manner in which the Convention’s compliance assurance mechanisms are working, it will be important to reflect critically on the (non) employment of challenge inspections and investigations of alleged use to resolve serious comliance concerns, and on the Executive Council’s decision-making culture when addressing such matters.

  

Maintaining the Comprehensive Nature of the Chemical Weapons Prohibition

 As the world moves away from 20th century chemical warfare concepts and weapons types, the risks associated with toxic chemicals and their potential misuse as weapons are becoming more diffuse, and less well defined in terms of chemical compounds or dissemination methods of concern.  Such processes are exacerbated by the rapid advances and convergence of the chemical and life sciences and associated technologies. In order to respond effectively to such paradigmic shifts and maintain the comprehensive nature of the CW prohibition, the OPCW should:

Ensure effective implementation of the General Purpose Criterion: The 4th Review Conference should reaffirm the importance of the General Purpose Criterion (GPC) as a vital safeguard ensuring the Convention’s comprehensive and future-proofed prohibition of chemical weapons.[3] Subsequently the OPCW should ensure this reaffirmation is translated into effective and uniform implementation of the GPC by all States Parties at the national level. This is particularly important given long-standing concerns over divergent interpretation and inconsistent implementation of the GPC amongst State Parties with the consequent dangers of weakening of its prohibition in practice. To facilitate effective and consistent  implementation, the OPCW should establish a consultative process to develop guidelines on how the “types and quantities” principle should be applied in practice. Development of such guidelines should be informed by technical input from the Technical Secretariat and the Scientific Advisory Board (SAB), and be open to contributions from all State Parties. Such guidelines would be applicable to the employment of all toxic chemicals with weapons utility. The Technical Secretariat should integrate such guidance on GPC implementation into its continuing programme of  national implementation assistance for CWC National Authorities, and should also be tasked with providing tailored assistance and clarification to individual States Parties on application of the GPC in specific cases. States should consequently ensure that all relevant research activities that may have potential for the development of weapons employing toxic chemicals are in conformity with the Convention. In addition, States should carry out necessary promulgation activities to ensure that all those engaged in such research, be they working in defence, law enforcement, industry, academia or other sectors; are aware of their obligations under the Convention.

There are specific challenges to the GPC arising from contested interpretation amongst States Parties as to the range of toxic chemicals and delivery mechanisms which could legitimately be employed for law enforcement purposes, and the nature of what constitutes legitimate use.  Consequently the Review Conference should establish an Open Ended Working Group (OEWG) or other mechanism to develop clear guidelines designed to prevent research, development and production and employment activities intended to support law enforcement that would undermine the prohibitions of the CWC. In its deliberations the OEWG/mechanism should consider existing obligations under relevant international law, notably International Human Rights Law (IHRL), and their bearing on the implementation of the CWC in this area.  The OEWG/mechanism should specifically address:

  • Incapacitating chemical agent (ICA) (also called CNS-acting chemical) weapons: It is envisaged that a suitable mechanism would potentially come to a determination either that development, stockpiling, transfer and use of ICA weapons for law enforcement are prohibited under the CWC or that such actions are permitted, but should be severly restricted and stringently regulated under the Convention. If the latter position is taken, then the mechanism could also: clarify what agents and delivery mechanisms were permissible, under what limited circumstances and with what constraints such use would be allowed.
  • Riot control agents: A suitable mechanism should clarify the nature and scope of activities consistent with “law enforcement including domestic riot control”[4] and develop guidance to States Parties as to the “types and quantities” [5] of riot control agents (RCAs) that can legitimately be employed in such circumstances, highlighting relevant obligations under IHRL, to ensure such RCA employment is proportionate, necessary and does not endanger life or health.
  • Delivery mechanisms: A suitable mechanism should develop criteria for determining which means of delivering and dispersing riot control agents and other toxic chemicals are inconsistent with the purpose of law enforcement and would consequently no longer satisfy the exemption from the definition of chemical weapon under Article II.1 of the Convention. Subsequently a guidance document should be developed detailing these criteria, and specifying those toxic chemical means of delivery that have been identified as being inconsistent with law enforcement purposes and consequently prohibited. Such prohibited means of delivery should, as a minimum include: artillery shells, aerial bombs, mortar shells and cluster munitions. This guidance document and the list of delivery means identified as inappropriate for law enforcement purposes should be reviewed regularly in a suitable forum, such as a Conference of States Parties (CSP) or Review Conference, to take into account developments in relevant science and technology.

Improve OPCW monitoring and risk assessment of science and technology: In 2011, the report of a high-level expert panel convened by the OPCW Director General to explore the future priorities of the Organization recommended that the OPCW should “improve and widen the scope of monitoring and evaluating developments in chemical science and technology . . . ”[6] Subsequently, these issues were also included in the 2015 Director General’s “Vision Paper”.[7] Consequently, the Organization should consider measures to:

  • Ensure more frequent and considered review by CWC States Parties of relevant advances in converging chemical and life sciences and technology and the implications for the Convention. In addition to the broad-scope review currently undertaken every five years in preparation for and during the Review Conference, more limited reviews of specific issues or technologies of potential concern should be prepared by the Technical Secretariat/Scientific Advisory Board for consideration by States Parties at the annual CSPs.
  • Further enhance the Technical Secretariat’s in-house capability to monitor advances in science and technology of potential concern to the OPCW; suitable mechanisms should also be established to allow the Technical Secretariat to bring relevant concerns proactively to the attention of the Executive Council and the States Parties, in a timely manner.

 

Strengthing National Implementation and Verification

 Convergence and the advances in science and technology may well have several effects on national implementation and verification, which the Fourth Review Conference should address:

Update industry verification measures:  The existing Schedules of Chemicals will remain important triggers of verification measures for traditional chemical warfare agents identified from past State programmes. But new production pathways to World War I, World War II, and 1950s era chemical warfare agents may become feasible as a result of technological advances; alternatively new potential chemical warfare agent types may become relevant involving intermediates and products not listed on any of the Schedules. Consequently, the industry verification regime as well as the analytical methods and databases available for challenge inspection and investigation of alleged use need to be adapted to these new technological and chemical realities. Consideration could be given to updating the Schedules themselves, at least to provide indicators of the new types of potential chemical agents (and their precursors) of concern.

Changing risk perceptions: Increasingly, in today’s security environment, other types of toxic chemicals are also (and sometimes more) relevant than existing Scheduled chemicals. From a perspective of risks associated with State actors, convergence and advances in enabling technologies have increased the technical feasibility of developing chemical agents that are less lethal, more targeted in their physiological effect, and perceived to be more suitable for the emerging operational context with military operations in populated areas. In contrast the choices of potential chemical agents by non-State actors are more likely to be driven by accessibility, as exemplified by terrorist attempts to develop improvised weapons employing toxic industrial chemicals or “home-made” chemical warfare agents. Consequently the Fourth Review Conference should acknowledge that the emphasis in the conduct of industry inspections should gradually shift from verifying the accuracy of declared data and checking on the absence of undeclared Scheduled chemicals, and place more weight on the general verification aims set out in the Convention (i.e. that activities at an inspected industry facility are consistent with the obligations undertaken under the Convention).

Holistic verification and national implementation: The OPCW should seek to establish a closer association between verification evaluation results and assessments of the effectiveness of, as well as weaknesses in, national implementation systems; and provide augmented support for National Authorities for implementation measures that reach beyond the Scheduled chemicals and address risks related to other toxic chemicals, and relevant delivery mechanisms. To facilitate such activities, a more interactive system of monitoring and evaluating advances in science, technology and industrial applications should be developed involving the Technical Secretariat, the Scientific Advisory Board, States Parties, industry and other non-governmental experts in order to create a more broadly-based and continuous mechanism for evaluating changes that the verification and national implementation systems ought to adapt to. One area where such a holistic approach would be particularly beneficial is transfer control; ensuring that continued assistance by the Technical Secretariat to National Authorities in effective implementation of CWC transfer control requirements, is informed by and responds to relevant developments in science, industrial processes and trade. At the international level, the OPCW should continue to develop its cooperation with the World Customs Organisation and other relevant organisations to enhance the effectiveness and efficiency of oversight of trade in dual-use chemicals and relevant delivery systems, and to combat illicit trade in this area.

In addition to these over-arching issues, the OPCW should resolve certain specific long-standing uncertainties limiting verification activities, including:

Other chemical production facilities (OCPFs): OCPFs are a category of chemical industry plants that do not currently produce, but are technically capable of manufacturing chemical warfare agents or precursors listed in the Schedules as well as non-scheduled chemical warfare agents.  At present  only a small fraction of declared OCPFs are selected for verification; the Fourth Review Conference should consider authorising a significant increase in OCPF inspections per year. The OPCW should also be directed to refine the site-selection algorithm so as to target inspections on those multipurpose chemical plants that pose the greatest risk of being utilized for prohibited purposes.

Biological and biologically mediated processes for the production of discrete organic chemicals: The Scientific Advisory Board has consistently recommended that bio-manufacturing of chemical products should be covered under the scope of the Convention; States Parties however have yet to agree on how to treat these types of production processes and attendant facilitities, and show no signs of doing so. This is despite the fact that some of the products and processes used by the bio-manufacturing industry are as relevant to the CWC as those used by other OCPF facilities, including those the Technical Secretariat considers pose significant risks; whilst other products and processes are not CWC-relevant at all. The Review Conference should follow Scientific Advisory Board advice and establish measures to determine the differing relevance of the various types of bio-manufacturing processes and facilitites for CWC verification purposes.

 

 

Preventing and Responding to Hostile Uses of Toxic Chemicals

 The OPCW should continue improvements in the operational and technical capacity of the Technical Secretariat to conduct challenge inspections and investigations of alleged use of chemical weapons, with an increased focus upon chemical forensics. Ongoing work by the Scientific Advisory Board into the opportunities and difficulties associated with chemial forensics will inform Technical Secretariat actions in this area and enable the OPCW to most effectively utilise new tools and methods arising from advances in science and technology. Such work must be complemented by efforts to compile, expand and properly curate the databases of reference spectra, and collections of reference materials, that will be needed for such forensic analysis. The OPCW should also build on the significant progress made towards developing a network of designated laboratories for the analysis of biomedical/biological samples.

 

The OPCW should also consider how best to contribute to strengthening resilience of States Parties against hostile uses of toxic chemicals (as well as against natural and accidental releases of toxic chemicals). This could include: establishment of regional capacities for an effective response to the use of chemical weapons or the accidental release of toxic chemicals with OPCW-trained and certified experts, and supported by the regions or sub-regions with regard to equipment resources; an expansion of the number of States Parties that have a viable national protective programme, supported by OPCW training and capacity building where needed.

 

This should be complemented by continued efforts to maintain and strengthen the OPCW’s capacity to engage in major international responses to the hostile use of toxic chemicals, in concert with other international organisations. Informed by its experiences in Iraq, Libya and Syria, a particular focus should be upon increasing the Technical Secretariat’s capacity to quickly respond to contingencies such as missions to prevent the involvement of chemical weapons in conflict situations, or the delivery of assistance to victims of chemical attacks (whether involving the use of military chemical weapons or improvised devices that disseminate toxic industrial chemicals). An important advance in this area, on which to build, has been the the establishment by the Technical Secretariat of a Rapid Response and Assistance Mission (RRAM) to respond to such situations.

 

[1] These recommendations are based upon relevant sections of the Conclusion (Chapter 21), Crowley, M., Dando, M. and Shang, L (eds), Preventing Chemical Weapons: Arms Control and Disarmament as the Sciences Converge, Royal Society of Chemisty, August 2018. For correspondence related to this paper please initially contact Dr Michael Crowley: m.j.a.crowley1@bradford.ac.uk.

[2] OPCW, Chemical Weapons Convention, Article VIII (22).

[3] See: OPCW, Chemical Weapons Convention, Article II.1 (a).

[4] OPCW, Chemical Weapons Convention, Article II.9 (d)

[5] See: OPCW, Chemical Weapons Convention, Article II.1 (a).

[6] OPCW, Technical Secretariat, Report of the Advisory Panel on Future Priorities of the OPCW, S/951/2011, 25 July 2011.

[7] OPCW, Technical Secretariat, The OPCW in 2025: Ensuring a World Free of Chemical Weapons, S/1252/2015, 6 March 2015.

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