Russia’s chemical terrorism proposal: Red herring or useful tool?

By Oliver Meier, Ralf Trapp | June 7, 2016

On March 1, Russian Foreign Minister Sergey Lavrov proposed that the Geneva-based Conference on Disarmament should negotiate a convention for the suppression of acts of chemical terrorism. Lavrov placed the proposal, which came as a surprise to many, in the context of continued chemical weapons use in the Middle East. There are now dozens of confirmed cases of the use of chemical weapons in the region, including by non-state actors. There is a growing concern that Daesh (a.k.a. ISIS) has established its own chemical weapon production capacities. There can be no doubt that a debate on measures to prevent chemical terrorism is urgent.

Lavrov’s speech was hardly the first time that Russia drew attention to the dangers of chemical terrorism. Moscow has repeatedly asserted that it was “terrorists” who were responsible for the use of chemical weapons in Syria. Yet some in the West believe that Russia was merely trying to distract from the use of chemical weapons by the Assad regime. Indeed, in 2015 Moscow held up agreement in the UN Security Council on the establishment of a Joint Investigative Mechanism of the UN and the Organization for the Prohibition of Chemical Weapons (OPCW), the implementation body of the Chemical Weapons Convention (CWC), tasked to identify those responsible for chemical weapons uses in Syria. It withdrew its objections only when the Iraqi government invited the OPCW to investigate the alleged use of chemical weapons by Daesh.

Yet even if there were ulterior motives behind the Russian proposal, the draft convention should be judged on its own merits. Two questions are particularly important: What gaps in international regimes prevent effective multilateral responses to the danger of chemical weapons falling into the hands of terrorists? And is the Russian proposal the best way to address such shortcomings?

What gaps? Russia argues that the proposed convention would fill two gaps in existing international regulations. First, Russia maintains that “the CWC does not fully address the challenge of countering terrorism.” Moscow argues that the convention “provides for a rather limited number of obligations with regard to criminal prosecution of persons involved in activities prohibited by the Convention for its States Parties.” Thus, Russia maintains that the CWC prohibition “applies to States Parties only.”

This is a bold statement and it is, at best, only half the truth. It is correct that the general prohibitions of the convention—not to develop, produce, acquire, stockpile, transfer, or use chemical weapons—bind states parties. The prohibition also extends to any form of assistance or encouragement to anyone to commit such an offence. But these governments have also undertaken to translate the obligations imposed by the CWC on states into national laws. According to Article VII, states parties must make sure that nobody subject to their jurisdiction or coming under their control acquires or uses chemical weapons. They must establish and implement laws that allow them to prosecute and punish any natural or legal person subject to their jurisdiction who misuses toxic agents for hostile purposes. Furthermore, all citizens, even if living or acting abroad, must be held accountable for prohibited activities.

In fact, many countries’ implementing legislation translates the CWC obligations precisely in this way into national laws. The treaty is also almost universal: 192 countries have joined the convention, covering 98 percent of the world’s population and landmass. True, only 108 states parties have fulfilled their obligation to comprehensively adopt penal and implementing legislation, but this is a problem of national capacity, not a legal shortcoming of the convention itself. Any new international treaty would face similar difficulties when states enact and enforce its prohibitions under their domestic laws.

Russia claims to have identified a second gap in the CWC. The Russian ambassador to the Conference on Disarmament, Alexey Borodavkin, argued on March 29 that “the CWC does not cover situations, non-standard but highly sensitive from the security point of view, which may arise during conflicts.” There simply is no legal basis for this claim. The obligations under the convention are binding under all circumstances, even when a state party is involved in armed conflict. There may be practical difficulties of implementing certain CWC provisions during armed conflict, but these are unlikely to be fixed by a new convention extraneous to the existing one.

Faulty diagnosis, dangerous prescriptions. What then is the purpose of the Russian proposal? A closer look is revealing. The draft is not primarily aimed at filling the presumed gaps in the CWC regarding non-state actors and applicability during armed conflict. By contrast, much of the document is aimed at increasing practical cooperation among states parties in preventing and prosecuting acts of chemical terrorism by foreign fighters.

In doing so, the draft appears to build on more than a dozen international conventions aimed at countering international acts of terrorism. But by drawing language from these agreements, the proposed treaty could actually undermine the strong and universal norm established by the CWC against the use of chemical weapons by anyone, anytime and anyplace.

For example, Article 2 of the Russian draft severely restricts the scope of the prohibition by stating that any person that “unlawfully and intentionally” uses a chemical weapon commits an offense. This language appears to be taken from treaties such as the 1997 International Convention for the Suppression of Terrorist Bombings. Yet the CWC does not differentiate between the use of chemical weapons for “lawful” or “unlawful” purposes, nor does it separate “intentional” from “unintentional” use of chemical weapons. Rather, the drafters of the CWC wisely crafted a prohibition of all uses of toxic chemicals, except for purposes not prohibited. This so-called “general purpose criterion” is a solid and all-encompassing way to capture any use of a toxic chemical as a chemical weapon, irrespective of circumstances or perpetrators.

It is true that there are certain exceptions to this prohibition. Toxic chemicals may, for example, be used for domestic law enforcement and riot control purposes. Yet this is a far cry from the assumption that there are “unlawful”—and, by implication, undefined “lawful”—purposes for the use of chemical weapons.

The proposed draft contains a number of practical measures that aim at improving cooperation among governments to prevent and prosecute chemical terrorism, for example by improving exchanges of information related to such acts. Borrowing from other anti-terrorism conventions, it establishes the principle of “prosecute or extradite.” Thus, parties would be obliged, for example, to either put foreigners involved in chemical attacks on their soil on trial or extradite them to countries that have lawfully claimed jurisdiction in the matter.

Better international cooperation in preventing chemical terrorism and in prosecuting those responsible for committing or supporting such acts is of course a good thing. Several recent terrorist attacks have revealed shortcomings in interactions among security agencies, even among countries whose policies are otherwise deeply integrated. There also have been obstacles in the past to effective intergovernmental legal cooperation. Obviously, politics has not risen to the challenge of fluid, transnational networks of groups and individuals working together to attack civilians, including by misusing dual-use technologies such as chemistry or the biological sciences.

However, whether these practical shortcomings are best addressed through a new international instruments is doubtful. The lack of cooperation among governments in preventing terrorist acts has many reasons, including the sensitive nature of relevant information, national parochialism, and institutional rivalries. Few if any of these problems would be bettered by yet another international convention.

What about biological agents? According to Russia, several countries including China and Italy have suggested that the proposed convention should also address biological terrorism. Combining prevention and response measures in the chemical and biological fields is indeed a sensible approach, and has been considered at national as well as international levels. States parties of the 1972 Biological and Toxin Weapons Convention (BWC) have recognized for many years the importance of strengthening their legislative and technical capacities to prevent and respond to hostile uses of biological agents, including by terrorists. Creating a new international treaty, however, would not only encounter legislative difficulties similar to those already mentioned in the context of chemical terrorism, but it would also have to overcome the legal and institutional differences that have evolved during the past four and a half decades between the chemical and the biological weapons arms control regimes. Last but not least: the BWC is also based on a “general purpose criterion,” which Russia’s proposed convention risks to undermine, and it, too, requires its parties to take measures to prohibit and prevent breaches of the convention.

Where and how? Russia strongly makes the case that the Geneva-based Conference on Disarmament (CD) should negotiate the new convention. Moscow argues that the new convention also has a disarmament dimension, because the 1993 Chemical Weapons Convention was negotiated at the conference and because the shared interest in preventing acts of chemical terrorism could revitalize the CD.

Revitalizing that body would indeed be desirable—it has been unable to negotiate any new treaty ever since it agreed on the 1996 Comprehensive Nuclear Test Ban Treaty. But Russia’s argument that negotiating the proposed convention could accomplish this remains unconvincing. Fighting terrorism is not a disarmament issue. While nobody would object to stronger measures against WMD terrorism, questions such as the definition of terrorism continue to divide the international community. Finally, there is the question of different memberships in the CWC and the CD. Many states parties to the former are not among the 65 members of the latter. Vice versa, Egypt and Israel are members of the latter but have not yet joined the former.

Perhaps more importantly, the Russian proposal seems to suggest that the CWC is somehow self-limiting and only concerned with eliminating state chemical weapons programs and stockpiles, not with the broader issues of maintaining and ensuring a world free of chemical weapons. Nothing could be farther from the truth, and Russia is of course fully aware of the intended nature of the CWC as a comprehensive ban not limited in either time or scope.

What should be done instead? Chemical and biological terrorism are threats that the international community must address. States need to strengthen their capacity to prevent, prohibit, detain, prosecute, and punish such acts, and closer international collaboration and coordination is essential.

Yet the Russian proposal to create (yet another) international treaty might in fact run the risk of increasing fragmentation, resulting in legal uncertainties and incoherence. It may also take considerable time before it would reach the universal adherence that the chemical and biological weapons conventions already enjoy.

A more productive approach would be to address the issue of chemical and biological terrorism through strengthening of the existing regimes, increasing the efforts to enforce their prohibitions and norms at the national level, and enhancing international collaborations and coordination within and between the institutional settings of the two treaties.

The OPCW, the implementation body of the CWC, has been trying hard to find new ways to strengthen its role in preventing chemical terrorism. It also recognizes that the experiences gained in Syria establish a “new operational paradigm” for the organization. This involves many lessons learned that have relevance also in reducing the risk of chemical weapons use by non-state actors. Even if OPCW policy-making organs have on occasion failed to tackle the issue of chemical terrorism head on, an intensification and expansion of deliberations among CWC members in The Hague on dealing with the threat posed by chemical terrorism is the most practical way forward.

Existing gaps can be filled either by decisions in the OPCW’s Executive Council, by the annual conference of states parties, or by the review conferences that occur once every five years. This approach is both legally sound and more practical because it is likely to lead to quicker results that are more universally applied.

A similar argument can be made for addressing risks of bioterrorism in a multilateral setting. More can and should be done by the parties of the biological weapons convention in terms of norm-setting and promotion of international cooperation, including in such areas as prosecution of acts of bioterrorism and legal cooperation. In contrast to the CWC, the BWC does not have an organization tasked with monitoring compliance. But its Implementation Support Unit could be tasked at the upcoming review conference to act as a platform for promoting and coordinating joint action among states parties. This would of course require a decision by the 174 member states to upgrade the small, three-person secretariat, which currently is too small to take on any additional tasks.

Should states decide to opt for negotiating a new legal instrument, it would be paramount that they do so within the existing legal and institutional structures, for example in the form of additional protocols to the existing disarmament conventions. Such protocols could further detail national obligations for enforcing the prohibitions and for cooperating with other states parties in legal matters. These are undertakings that the parties to the two conventions have already pledged, albeit in more general terms, as part of their treaty obligations.

Efforts to suppress acts of chemical and biological terrorism should be guided by the principle of, first, doing no harm to the existing disarmament regime. The introduction of competing or confusing norms, definitions, or procedures must be avoided. Instead, any addition to the regulatory framework should build on the strong foundation of current legal norms and obligations.

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