The First Report of the OPCW’s Investigation and Identification Team on Syria

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In April 2020, the Investigation and Identification Team (IIT) formed by the Director General of the Organisation for Prevention of Chemical Weapons (OPCW) to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic released its First Report (First IIT Report). The IIT was established pursuant to a decision of the Conference of the States Parties to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Convention) taken on 27 June 2018 (27 June Decision).

The First IIT Report, noting the lack of assistance information from Syrian authorities, relied upon individual interviews, documentary and photographic evidence, witness testimony, and forensic examination of samples collected from the attack sites as provided by local, regional and international actors (Annex 2-4) to support its findings. It concluded, inter alia, that there were reasonable grounds to believe that the Syrian Arab Air Force employed sarin and chlorine in attacks carried out on 24, 25 and 30 March 2017 in Ltamenah, Syria (First IIT Report, Executive Summary, Paragraph 3). Additionally, it also identified the relevant commanders of the Syrian Air Force and other individuals potentially involved in the attacks. While the public version of the First IIT Report redacts the names of the identified individuals as “OPCW Highly Protected”, the names have been furnished to OPCW States Parties (see footnote 61 and Annex 6).

On this basis, on 9 July 2020, the OPCW Executive adopted a strongly-worded Decision on the possession and use of chemical weapons by Syria (9 July Decision) and, inter alia, expressed concern regarding the lack of destruction by Syria of its chemical weapons, condemned the use of chemical weapons in the three attacks in Ltamenah, and referred Syria’s non-compliance to OPCW States Parties. This sets the stage for further political and legal action. In order to properly consider the 9 July Decision in its context, it is useful to consider its underlying basis, namely, the IIT’s work as articulated in the First IIT Report.

Background

The IIT is the latest mechanism created to ascertain facts and affix responsibility for the use of chemical weapons during the civil war in Syria. Prior to its creation, the Joint Investigative Mechanism, a joint initiative between the UN and the OPCW, had been tasked with attributing responsibility for the use of chemical weapons in Syria. Amongst its other findings, the Joint Investigative Mechanism held the Syrian regime responsible for the use of sarin in Khan Shaykhun in 2017. However, the exigencies of international politics ensured the termination of the Joint Investigative Mechanism in November 2017 after the UN Security Council failed to renew its mandate. With the discontinuation of the Joint Investigative Mechanism, the use of chemical weapons in Syria once again returned to its original position of a proscription lacking a remedy.

It was in this light that Paragraph 10 of the 27 June Decision resolved to institute arrangements for the identification of perpetrators in cases where the Fact-Finding Mission of the OPCW in Syria had determined likely use of chemical weapons and where the Joint Investigative Mechanism had not issued a report. This led to the creation of the IIT by the Director-General of the OPCW in March 2019. Thus, the IIT was the OPCW’s response to fill the void created by the termination of the Joint Investigative Mechanism.

The Choice of Incidents

As aforementioned, the IIT identified the three attacks in Ltamenah in March 2017 as the first set of incidents to be investigated on the basis of the severity of the incidents, the availability and reliability of evidence, and the type of chemical substances used (Paragraphs 3.4 and 3.7). On the one hand, the investigation of the relatively less severe Ltamenah attacks may seem misplaced in light of the vastly graver attacks examined by the Joint Investigative Mechanism, including the Khan Shaykhun attacks, the deadliest since 2013 that led to vast civilian casualties.

On the other hand, as noted in the First IIT Report, the region’s military importance and the finding of a military expert that the attacks were not “inconsistent with a strategy aimed at inflicting terror on both civilians and combatants, [and] at eliminating infrastructure such as the medical facilities” provided evidence of the use of chemical weapons by Syrian forces as a means of complete subjugation of the population. Further, the strategic importance of Ltamenah village as a logistic and supply centre for opposing non-State armed groups, and its proximity to the “strategically vital” M5 Highway validated the IIT’s focus on the Ltamenah attacks.

More generally, the focus on relatively “low-key” attacks as against widely reported attacks helps establish the systemic and widespread nature of chemical weapons attacks and their deployment as regular conventional weapons rather than as weapons of last or extraordinary resort.

Potential Scenarios: Debunking Alternative Theories

Considering the criticism directed towards the Joint Investigative Mechanism by Syria and other stakeholders (see here and here) that the attacks it investigated had been staged, the First IIT Report pre-emptively examined such possibilities for the chemical attacks in Ltamenah.

The research methodology followed in the First IIT Report identified potential scenarios as to how the chemical attacks could have been undertaken including the possibility that they were conducted by “rogue” units or staged by fabricating videos, training civilians and medical personnel, or by intentionally contaminating the attack sites (Paragraph 5.3). The First IIT Report devotes a substantial portion to several alternative theories, such as the use of sarin gas with a different chemical composition and originating source, potential false-flag operations by opposition groups, and the use of sarin gas retrieved by opposition groups from Syrian testing sites.

The First IIT Report rejected the likelihood of false-flag operations by relying on a variety of factors. Firstly, the sarin gas released in the Ltamenah attacks was found to have originated from the same source as that used in Khan Shaykhun. Secondly, the chemical profile of the sarin used in the 24 and 30 March attacks was consistent with the sarin stockpiles maintained by Syria. Thirdly, the sarin attack was most likely carried out using M4000 aerial bombs that were only available to the Syrian Air Force. Similarly, the chlorine attack of 25 March followed a similar modus operandi as that of previous chlorine attacks by the Syrian government. Additionally, witness testimony and flight data records showed an attack by Mi-8 helicopters at the site of the chlorine attack. These helicopters were only used by the Syrian Air Force. Finally, unlike other instances where the Syrian government initiated inquiries into the chemical attacks, no domestic investigations were ordered in relation to the Ltamenah incidents.

The discussion of alternative explanations serves two purposes. Firstly, analysing evidence and substantively repudiating contrary theories dilutes the scope and extent of partisan allegations that may be made against the First IIT Report (nonetheless such insinuations have still been made, see here and here). Secondly, eliminating alternative scenarios helps establish the veracity of the IIT’s factual findings, and strengthens conclusions on individual and state responsibility.

Potential Expansion of the IIT’s Mandate?

Paragraph 10 of the 27 June Decision directed the creation of a body “to identify the perpetrators of the use of chemical weapons” as against the Joint Investigative Mechanism which included the identification of “organizers, sponsors or otherwise involved”.

Paragraph 2.6 of the First IIT Report recognises the task of “identifying individuals or entities directly or indirectly involved in such use [of chemical weapons] …”. In contrast, Paragraph 2.8 notes that “perpetrators” must include individuals, entities, groups, or governments who were perpetrators, organisers, sponsors, or otherwise involved. Paragraph 2.16 then concludes that perpetrator:

“covers any person – either natural or legal, including entities, groups, and governments (i.e., non-State and State actors) – directly or indirectly involved in the use of chemical weapons in the incidents under the IIT’s purview”.

Considering the observations above, it is unclear whether the IIT’s mandate to identify ‘perpetrators’ includes only direct or indirect perpetrators, or also includes organisers and sponsors. Accordingly, the discussion on perpetrators deserved better clarity as the removal of the specific terms in the 27 June Decision creating the IIT may have been a conscious attempt at limiting its mandate. In any event, the OPCW States Parties have not, so far, expressed any opposition to the First IIT Report on such grounds.

The Standard of Proof

The First IIT Report relies upon three fact-finding reports (on Guinea, Darfur and Syria) and ICC and ECtHR case-law to adopt the standard of reasonable grounds to believe as a “standard akin to ‘reasonable suspicion’” (Paragraph 2.18, footnotes 30 and 31).

The Guinea Report and the Darfur Report relied upon by the IIT, however, either equate the “reasonable grounds to suspect” standard to the prima facie evidentiary standard of the ICTY (Paragraphs 215-216, Guinea Report) or distinguish “reasonable grounds to believe” from reasonable suspicion (Paragraph 15, Darfur Report). The Third Syrian Report stated that it applied the standard of proof used in previous reports, namely “reasonable grounds to believe” (Paragraph 11). In this respect, the prior First Syrian Report observed that the “reasonable suspicion” standard was sufficient to fulfil its fact-finding mandate (Paragraphs 5 and 6), whereas the Second (Paragraphs 10 and 87) and Third Syrian Report, while adopting the “standard of proof used in its first report” termed such a standard as “reasonable grounds to believe” without further clarification.

Similarly, although the ICC has indeed equated the reasonable belief standard under Article 58 of the Rome Statute to the reasonable suspicion standard under the ECHR, as argued in a separate piece (as have others here and here), the ICC’s case law in this area is inconsistent and unsettled, and the reasonable belief standard is arguably higher than reasonable suspicion.

Notwithstanding, as per ICC and ECtHR jurisprudence, “reasonable suspicion” is sufficient for the issuance of an arrest warrant. Considering the IIT’s mandate of identifying perpetrators (Paragraph 2.23), it is unclear whether the findings of the IIT – specifically, that it would require “a sufficient and reliable body of information which, consistent with other information, would allow an ordinarily prudent person to reasonably” reach a conclusion (Paragraph 2.18) – are sufficient for the issuance of an arrest warrant, or merely to commence formal criminal investigations. Accordingly, a lower standard than that required in criminal proceedings may have sufficed for the purposes of the First IIT Report.

Key Takeaways: Accountability

The submission of the First IIT Report by the Technical Secretariat to the OPCW Executive Council was accompanied by a Statement of the OPCW Director-General reiterating the IIT’s mandate as a fact-finding body with no judicial or quasi-judicial authority. In this light, an investigative arm in the form of the IIT without a corresponding judicial system for attributing responsibility may seem an incomplete solution. Nonetheless, three positive implications flow from the IIT’s investigative findings.

Firstly, and immediately, considering the ICC’s inability to adjudicate individual criminal responsibility in the situation in Syria, national courts have become the first port of call to prosecute such international crimes. Thus, several States have sought to exercise extra-territorial universal jurisdiction to prosecute Syrian suspects. The limited funding of State war crimes units and the disparity of such prosecutions is compensated by an internationally coordinated approach to collecting evidence, gathering witness testimony, and preserving physical evidence. The IIT, by identifying individuals leading particular Divisions of the Syrian Arab Air Force involved in the three chemical attacks, provides the necessary foundation for the initiation of investigations and potentially prosecutions by States.

Secondly, the factual findings of the First IIT Report assist the mandate of the International, Impartial and Independent Mechanism (IIIM) created by the UN General Assembly to assist in the investigation and prosecution of persons responsible for international crimes in Syria. The findings of the First IIT Report directly aid the mandate of the IIIM to “collect, consolidate, preserve and analyse evidence of violations of international humanitarian law and human rights violations” to facilitate future criminal proceedings at the international, regional, or domestic level.

Finally, the First IIT Report assists the pursuit of supervisory and peer-led accountability. For instance, the First IIT Report attracted immediate reaction, and has been consistently referred to by OPCW States Parties leading up to the 94th Session of the Executive Council. Resultantly, in its 9 July Decision, the Executive Council issued fresh requests to Syria under Paragraph 36 of Article VIII of the Convention to declare the chemical weapons under its possession, the facilities that stored the chemical weapons used in the Ltamenah attacks, and to resolve issues arising from its initial declaration to the OPCW within 90 days. Additionally, the Executive Council decided, inter alia, that the OPCW Secretariat would conduct two inspections each year at the two sites involved in launching the chemical weapons attacks, with “full and unfettered access” to all buildings, structures, and personnel (9 July Decision, Paragraph 8). The Executive Council also noted that it would recommend to the OPCW Conference of States Parties to suspend Syria’s rights and privileges in accordance with Paragraph 2 of Article XII of the Convention upon any failure to comply with its 9 July Decision (Paragraphs 5-7).

Similarly, the violation of Article I of the Convention as established by the First IIT Report may lead to the recommendation of collective action measures against Syria by Conference of States Parties under Paragraph 3 of Article XII. In the same vein, States may impose or enhance the existing unilateral sanctions against Syria as well as suspect individuals. In this respect, the International Partnership Against Impunity for the Use of Chemical Weapons , an intergovernmental partnership of 40 States and the European Union formed to deter chemical weapons use by criminal prosecution and administrative sanction, has a list of national sanctions passed against Syria by member countries. The statement issued by the partnership in reference to the First IIT Report alluded to further administrative sanctions, and future OPCW Sessions may incentivise stricter sanctions through informal intergovernmental cooperation.

Conclusion

The independent and impartial collection, preservation, and documentation of evidence on the deployment of chemical weapons in Syria may serve as a precursor to judicial and compensatory accountability under domestic or international regimes. In that regard, the First IIT Report, expectantly a first in many, carries forward the legacy of the Joint Investigative Mechanism while cautiously seeking to counter allegations of partiality. It remains to be seen what ultimately results from such endeavours.

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