International Justice Trends in Microcosm at the OPCW – Three Observations as States Adopt ‘Attribution Mechanism’

by Matt Cannock

opcw flags

 

On June 27th 2018, the Organisation for the Prohibition of Chemical Weapons (‘OPCW’) Conference of States Parties held a ‘Special Session’ which established an ‘Attribution Mechanism’ at the OPCW. The Special Session was held at the request of 11 states (Australia, Bulgaria, Canada, France, Germany, Japan, New Zealand, Poland, Romania, UK, and USA) in response to the use of chemical weapons in Iraq, Malaysia, the Syrian Arab Republic, and the United Kingdom of Great Britain since 2012, by state and non-state actors.

Amnesty International welcomed the establishment of the ‘Attribution Mechanism’ which enables the Secretariat of the OPCW to conduct independent investigations of alleged uses of chemical weapons with a view to facilitating universal attribution of all chemical weapons attacks . The OPCW’s Director-General will provide proposals on how this will work at the Conference of States Parties’ next regular session in November 2018. In relation to Syria, the Conference of States Parties decided that the OPCW Secretariat should put in place arrangements to identify the perpetrators using chemical weapons. Crucially, these findings and evidence can be shared with the International, Impartial and Independent Mechanism (‘IIIM’) for Syria.

The two-day Special Session showed – in microcosm – a number of trends in international criminal justice. In particular, the increasingly ‘outside-of-the-box’ thinking which is required to push forward international criminal justice efforts, especially in light of UN Security Council (‘UNSC’) ‘deadlock’. Related to this, is the issue of how bodies which are not typically established to play a role in international criminal justice efforts are being mandated to do so. Lastly, the Special Session also highlighted shameful double-standards which persist in international criminal law – including of some ‘supporters’ pushing for the OPCW ‘Attribution Mechanism’.

i. Breaking UNSC Deadlock

Three permanent members of the UNSC were among those who had requested the Special Session: United Kingdom, France and the United States of America. The request was in response to Russia’s and China’s vetoing of the Joint-Investigative Mechanism in November 2017.

It is ironic that permanent members of the Security Council see the answer to UNSC deadlock, not in putting further efforts into reform of the UNSC and the use of the veto, but in ‘going around’ the UNSC to ‘unblocked’ multi-lateral fora. UNSC reform would of course be preferable to organisational contortions.

For many years Amnesty International has urged the P-5 to refrain from the egregious use or threat of the veto in situations of genocide, crimes against humanity and war crimes. Of the Special Session’s ‘requesting states’ the UK and France are signatories to the Accountability, Coherence and Transparency Group ‘Code of Conduct’ and the France-Mexico Initiative on veto-restraint. Another ‘requesting state’ – the United States of America – has not refrained in its use of the veto, and the UK and France should use this OPCW Special Session, as a prime example, to highlight to the US Government the difficulties that the veto causes to the international community’s pursuit of accountability.

Unfortunately, given that the permanent members of the UNSC ultimately benefit from the possibility to veto investigations and UNSC responses when they don’t wish to see action – reform is still some way off. This has meant that the UNSC has abjectly failed to respond to situations where crimes under international law have been committed. This failure to pursue accountability, for example in Syria, has emboldened perpetrators who are becoming more brazen in their violations, safe in the knowledge that the UNSC will allow them to evade justice.

That said, all avenues for international justice and accountability in Syria and other situations suffering from UNSC ‘deadlock’ must be considered – if states have to think ‘outside-the-box’, so be it. Here we have a case in point (…strap-in!): UNSC deadlock in New York has led to the IIIM being established in Geneva by the UN General Assembly, which gathers and preserves evidence of chemical weapons use from the OPCW in The Hague, to share with – at present – national-level jurisdictions.

Endowing a ‘verification’ body (OPCW), with powers to share its ‘evidence’ with a non-judicial mechanism (IIIM), which will in turn share its final cases with primarily national prosecutors, shows the almost absurd logistical hurdles that UNSC deadlock causes to international justice efforts.

On a positive note though, UNSC deadlock does not mean that all hope is lost – where there is will and imagination there is a way.

But at what cost? The UN General Assembly is as political as the UNSC, and although it benefits from broader representation than the UNSC, it does not benefit from the vertical enforcement ‘Chapter VII’ regime of the Security Council, which makes the IIIM weaker in terms of enforcement than a UNSC-mandated mechanism. The OPCW is an independent mechanism that is inherently less politicised than the UNSC. But, in activating the OPCW to address issues arising out of UNSC political difficulties, the OPCW inevitably becomes more politicised, which may affect the perception of its independence and impartiality and leaves it open to accusations of instrumentalisation by states.

ii. ‘Operationalising’ Evidence and Findings

In Syria and other contexts, major challenges exist to ‘operationalise’ evidence of crimes under international law which has been gathered. In this regard, the role that persons or mechanisms which are not ‘typically’ international criminal investigation bodies can or should play in international criminal justice efforts or in gathering or operationalising evidence is still being worked out. Those familiar with the ‘Hague v Geneva’ question will know that traditionally ‘Geneva’ (human rights) mechanisms are not set-up to undertake international criminal investigations. Indeed, their methodologies and mandates make complementing or cooperating with international criminal justice efforts a tricky issue. But this is changing; for example, the IIIM is working closely with the Commission of Inquiry on Syria to discuss cooperation and information sharing. In other instances, typically ‘human rights’ mandates now regularly include reporting on situations in which crimes under international law have been committed, with recommendations subsequently made on accountability (for example recommendations to the ICC).

The OPCW’s new mandate is a good example of this trend. It is not an international justice mechanism, but it does have the expertise to investigate chemical weapons attacks and may attribute responsibility when chemical weapons are used, which may be crucial for future prosecutions. In this regard, the Special Session’s Resolution allows the OPCW Secretariat to ‘preserve and provide information to [the IIIM] as well as to any relevant investigatory entities established under the auspices of the United Nations’. Thus, the OPCW’s expert findings and evidence can be ‘operationalised’ by the IIIM (which in turn can further consolidate information before sharing it, or ‘operationalising’ it through national and international prosecuting bodies). This is a major breakthrough, which will ensure that the findings of the OPCW will not remain confined to a report, but can firmly contribute to accountability efforts.

Unrelated to Syria, how the OPCW ‘Attribution Mechanism’ will operationalise its findings in non-Syrian contexts must be clearly defined by the OPCW Secretariat. It is noteworthy that an earlier draft of the resolution which specifically mentioned ‘accountability’ was removed. This is disappointing but should not mean that contributing to accountability efforts is discounted.

In this vein, it is crucial that the OPCW’s findings and the evidence it gathers can be used in international or national-level investigations and prosecutions. This must form a key-part of the OPCW Secretariat’s recommendations, but – once again – creative thinking will be required for this non-judicial mechanism to contribute to, complement, and cooperate with genuine national and international accountability efforts.

iii. Shameful Double-Standards

‘All illegal weapons are illegal, but some are more illegal than others’
The criminalisation of weapons of war should not depend on political expediency and whether major-powers and their allies are using or suffering from the use of them. In this regard, one of the most striking aspects of the Special Session was that nearly all of those States which had requested the Session were those exact States who, in December 2017, had lined-up to make sure that an amendment to the Rome Statute specifically criminalising the use of anti-personnel landmines did not get adopted. We must not forget that amongst the sponsoring states, the allies of UK, France, Germany, Japan, Australia and New Zealand were amongst those States who decided to join the Republic of South Korea at the Sixteenth ASP Session in not criminalising the use of anti-personnel landmines.

The double-standard on display at the OPCW should shame these States who claim to act in furtherance of international justice. The use of chemical weapons and anti-personnel landmines violates the prohibitions of using weapons of a nature to cause superfluous injury or unnecessary suffering and weapons that are by nature indiscriminate. The requesting States should ask themselves why it is proper to hold accountable those who use one type of prohibited weapons not others?

On double standards, the active role of the US Government pushing to strengthen the OPCW when it had an interest in that body’s ‘positive’ outcome, stood in strong contrast to its decision to pull out of the Human Rights Council only the week before when it claimed it did not. The opportunity to highlight US hypocrisy was not missed by the Syrian Government, which used the observation to deflect attention from its own atrocities. The US withdrawal from the HRC took place less than a week before the OPCW Special Session but already its withdrawal had freed-up space for states to attack and attempt to dismantle human rights and gave an ‘easy-win’ to human rights violators in a forum the United States attends.