CIAO DATE: 02/02

Implementation of Multilateral Arms Control Agreements: Questions of Compliance
Chemical Weapons

Heiner Staub
AC-Laboratorium Spiez, Switzerland

1999 - 2000

The Geneva Centre for Security Policy (GCSP)

Summary

Before WW II, the Geneva Protocol banning the use of CW has been violated on few occasions and with very week response. Later, allegations became more frequent, but the only post WW II large-scale use of CW occurred during the Iran/Iraq war. The reaction of the Security Council was weak and only after the cease-fire was a resolution passed condemning the use of CW. The only action taken — and outside the UN — was the foundation of a coordinating body for critical export controls, called the "Australia Group".

Several other investigations have been initiated, but all of them either inconclusive or negative. In all cases of alleged use of CW before EIF of the CWC, when an official request was made, an investigation was initiated, whereas allegations from insurgent movements were not followed up.

In the aftermath of the Gulf War, Iraq accepted the UN resolution and the UNSCOM inspections, but in practice did everything possible not to fulfil its obligations and to conceal its weapon programme. But there is hope that this is, and will be, a unique case. Few other proliferators have the resources required to pose such a formidable challenge to an international monitoring and verification regime.

The CWC not only has a much more extensive prohibition clause, but also imposes additional obligations to the Member States. These include declarations, routine inspections and challenge inspections. The OPCW has the task of taking the necessary steps to ensure compliance. In the case of failure of compliance, the Convention lists three measures to be taken: to restrict or suspend the State Party's rights and privileges under the Convention, to recommend to States Parties collective action, or to bring it to the attention of the UN for further action.

Concerning the status of compliance, one can conclude that no serious violation of the CWC has been registered so far. However, there are many cases of "technical" non-compliance concerning several obligations put down in the Convention. It is hoped that after the initial grace period, compliance will be rigorously observed to ensure the credibility of the CWC.

The treaty provides for the most comprehensive and intrusive system of verification to date of any disarmament treaty. It is working and the chances of detecting non-compliance are high. The big unknown is how the OPCW will deal with the established non-compliance. Experience up to now have not been very encouraging.

Enforcement of non-compliance is probably best addresses within the Convention by a system of incentives and disincentives; whereas to non-member countries, decisive actions such as export bans, sanctions or even military actions are required.

Abbreviations

BW   Biological Weapons

BWC   Biological Weapons Convention (Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological [Biological] and Toxin Weapons and on their Destruction)

BZ   Incapacitating Agent, chemical name 3-Quinuclidinyl benzilate

CBW   Chemical and Biological Weapons

CoSP   Conference of States Parties of the OPCW

CR   Tear gas, chemical name Dibenz-(b,f)-1,4-oxazepine

CW   Chemical Weapon

CWC   Chemical Weapons Convention (Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction)

EC     Executive Council of the OPCW

EIF   Entry into Force

NBC   Nuclear, biological and chemical

NGO   Non-Governmental Organisation

RENAMO   Mozambican National Resistance movement

OPCW   Organisation for the Prohibition of Chemical Weapons

UN   United Nations

UNSCOM   United Nations Special Commission for overseeing the elimination of weapons of mass destruction and ballistic missiles in Iraq

USA   United States of America

WMD   Weapons of Mass Destruction

VX   Most toxic deadly Nerve Gas, developed in USA in the 1950s

WW   World War

1. History

The history of compliance logically starts with the first international prohibition treaty. This first attempt to prohibit Chemical Weapons was made at the Hague Peace Conference in 1898. Although failed to meet its primary objectives of limiting armaments, it managed to extend the Brussels Declaration of 1874 concerning the laws and customs of war. The third extension of this declaration prohibited the use of projectiles causing 'diffusion of asphyxiating or deleterious gasses'. We all know that this declaration and the subsequent Hague Convention had little or no effect at all and that during WW I, CW had been used extensively on both sides. Nevertheless, during the war and particularly in 1915 before the Allies had used CW in return, the press in Britain emphasised Germany's violation of the Hague Treaty. After the end of the war, public opinion became focused on the fact that CW had been use in the conflict and, particularly in USA, was pushing for a complete abolition of chemical warfare.

During the negotiation of the Versailles Treaty, the Allies agreed that Germany should be prohibited from producing or importing toxic agents. The British wanted to impose some sort of declaration for the Germans, but the treaty ended up with only a special article reaffirming the CW prohibition of the Hague Treaty, in particular prohibition for Germany. However, there were no provisions for verification or enforcement.

The next attempt to ban CW was made at the Geneva Conference in 1925. The resulting Geneva Protocol restated the prohibition of the use of poisonous gas laid down in previous treaties, and added a ban on bacteriological warfare. However, their development, production and possession was not prohibited. Additionally, many countries when ratifying the protocol made a reservation stating that it would cease to be binding if their enemies would not respect the prohibition of the protocol. This was the reason the Geneva Protocol was ineffective in preventing many countries from building up stockpiles of CW and thereby, increasing the risk that they eventually be used.

The Geneva Protocol was signed on 17 June 1925. Many countries, including the great powers, ratified it before WW II. The two exceptions were USA and Japan, who ratified it only in 1975 and 1970, respectively.

The first open breach of the Geneva Protocol occurred in Abyssinia, when Italian troops employed CW against the unprotected troops of the Abyssinian Emperor.

The League of Nations established a Committee to investigate the case. Only after the Italians had completely occupied the country, were sanctions instituted, but apparently very weak ones. This was the only consequence of this use of CW by a State having ratified the Geneva Protocol in 1928.

The other use of CW between the two World Wars was during Japan's attack on China from 1937 onwards. The SIPRI book on 'The Problem of Chemical and Biological Warfare' states: "Although Japan was not party to the Geneva Protocol, the use of gas was regarded as a violation of the accepted custom of war. The League's response to China's appeals was even more sluggish than in the case of Ethiopia".

During WW II, CW had not been used, asides from some minor incidences. It is generally accepted that the Geneva Protocol did not prevent the belligerent powers from using CW, but rather various political and military factors.

2. Cases of non-compliance after WW II

Since 1945, there have been numerous allegations of the use of CW. During these more than 50 years, there have been very few conflicts, where not, during the hostilities, at least one of the belligerents has alleged that the opponent used CW. In the following chapters, the most interesting cases will be addressed.

1. Yemen 1963-67

   During the civil war in Yemen, allegations were made that the Egyptian troops, supporting the republican forces, had used lethal gas. The allegations were made mainly by the Saudi Arabian government, who backed the royalist regime. Nevertheless, there were also reports of the use of CW from independent sources, such as western journalists and delegates of the International Committee of the Red Cross. Egypt, who ratified the Geneva Protocol in 1928, vigorously denied the use of gas. Reports were communicated to the UN Secretary-General, but no Government was willing to take the lead and therefore, no action was taken.

2. Vietnam 1962-1971

   It has been alleged that USA, while deploring the use of CW in Yemen, kept its response to the allegation low key in order to minimise the embarrassment arising from there own activities in Vietnam.

   In the Vietnam War, USA used herbicides and riot control agents on a large scale. Although chemical in nature, these agents were not considered to be CW by USA. The USA government claimed that the definition of chemical warfare under international law required that damage be done to the physical person of the enemy, and that the use of riot control agents was not proscribed by the Geneva Protocol. (At that time, the USA was not a Party since it ratified the Protocol only in 1975.)

   This interpretation led to a new phase in the disarmament discussion in 1969. A resolution in the UN General Assembly was adopted, which interpreted the Geneva Protocol in such a way as to prohibit the use of herbicides and tear gases. In the same year, the USA President announced the unilateral renunciation on BW and promised to submit the Geneva Protocol to the Senate for ratification.

3. Laos 1975-84

   Allegations that CW had been used in Laos (and Kampuchea) against "hill tribesmen" started in the mid-1970's. USA accused these governments and their ally, the Soviet Union, of using CW. The governments denied these allegations. The USA government started a programme to investigate these allegations and in 1980 circulated a Compendium to UN members containing their findings and pushing for a UN investigation. By that time, USA investigators believed that a lethal mycotoxin was used (yellow rain).

   The UN General Assembly adopted resolution 35/144C in 1980 and asked the Secretary-General to investigate the allegations. A group of experts were assembled, but access to the countries was denied and the report was inconclusive.

   In 1982, a UN Group of Experts submitted a second report, although access to the actual sites was still not possible. Again, the report was inconclusive. It could not exclude that CW might have been used, but expressed concerns that "some allegations were only supported by scanty circumstantial evidence".

   In 1983, Canadian investigators suggested that yellow rain was bee faeces, produced when swarms of honeybees took cleansing flights. It is up to now still unclear whether CW had ever been used.

   Nevertheless, this incident had helped the UN General assembly resolution 37/98D to be adopted in 1982. This resolution empowers the Secretary-General to investigate, with the assistance of experts, any alleged use of CBW.

4. Iraq / Iran 1980-88

   The only post-WW II large-scale use of CW occurred during the Iran/Iraq war. Eight weeks after the first Iraqi attack, Iran published the first allegation of Iraqi use of CW. Iraq, which ratified the Geneva Convention in 1931, categorically rejected these Iranian allegations and also rejected the idea of a UN investigation. Even after the publication of the UN report, which gave clear evidence that CW had been used, Iraq denied it.

   Iraq seemed to have used CW mostly as a last resort to stop breakthroughs of Iranian Forces. The correlation of CW attacks and Iranian offensives shows this clearly. Another reason might have been to give continuing small-scale warnings to the Iranian government of what might happen after a major breakthrough. Only towards the end of the conflict, did it seem that the Iraqi started to use CW as an offensive weapon, probably due to their "good" experience gained during the war. Many analysts think that the use of CW by Iraq was militarily profitable.

   At the end of 1983 and beginning of 1984, Iran asked the UN to investigate the allegations. In spring 1984, Iranian soldiers who had been wounded by CW were treated in European, Australian and Japanese hospitals. Subsequently, the Secretary-General of the UN in his own capacity decided to dispatch an investigation team. The conclusions of the team were clear: Mustard and Tabun had been used. In 1985 and 1986, further UN investigations took place and confirmed the use of CW. In 1987 both countries accused each other mutually of having use CW. An investigation team again concluded that Iraq had used CW against Iran. However, the sources of the CW causing casualties in Iraq were not clear. The last UN investigations took place in 1988.

   It should be noted that although allegations had been made that Iran had used CW in return, no proof was found to sustain these allegations.

   The reaction of the Security Council to all evidence given in the UN investigation reports was very weak. Statements were delivered condemning the use of CW and resolutions were taken reiterating the prohibition of the use of CW. However no sanctions were passed. The resolution condemning the use of CW was only made in August 1988, after the cease-fire.

   The only action worth mentioning, but outside the UN, was the export ban for Iraq on certain chemicals introduced by a few industrial countries, including the Soviet Union. This was followed by the foundation of a co-ordinating body for these export controls, called the "Australia Group" (not including the Soviet Union).

   After the cease-fire with Iran, the Iraqi Army conducted a vast operation against a Kurdish resistance group in the northern Iraq. Again, large amounts of CW had been used in these actions. Asides from reports in the newspapers, there was no other reaction. At the insistence of 10 States, the Secretary-General wrote a letter to Iraq asking for permission to do an investigation. This request was denied and with that, the affair was — officially — closed.

5. Angola 1986-1990

   Allegations of the use of CW cropped up during the civil war over quite a long period of time. A series of incidents occurred, producing a medical intriguing neurological syndrome in people in the UNITA forces (an insurgent movement in Angola). Whether this syndrome was due to CBW or had natural sources is still unclear. Attempts to verify these allegations were made by South African and European investigators, but none of them were able to produce definitive proof what really had happened. No investigation by UN was initiated. Although the case had attracted relatively great attention in the international press, it was not recognised by the UN.

6. Mozambique 1992

   At the request of the Government of Mozambique the UN Secretary-General dispatched an investigation team to Maputo in March 1992. The allegation was that a battalion had been attacked by CW on 16 January by RENAMO forces. Preceding this investigation, South African, Swedish and British experts had conducted three independent investigations. The South African reports concluded that they could not exclude that an unusual incident occurred, but there was not enough evidence to support the allegation that CW were used. Symptoms of the patients could also be attributed to a combination of fatigue, poor hydration and heat stress. The Swedish report concluded that military smoke could have acted as a poison. Only the British report concluded "that it is certainly a possibility that CW was used", although the report offers very little support of this conclusion.

   The UN investigation, which took place about 10 weeks after the incident, added little to clarify the situation. Since only one explosion occurred, one of the conclusions was that it was very unlikely that a chemical attack took place.

   Years later, the hypothesis was advanced that the South African Armed Forces had conducted a trial with secret CW. However, neither the facts from the various reports nor the findings in the report of the South African Truth Commission, support this theory.

7. Azerbaijan 1992

   Following several unsubstantiated accusations by news agencies of the use of CW by Armenia in the Nagorno-Karabakh conflict, Azerbaijan accused Armenia in June in an official letter to the UN of having used CW. It was reported that "the effects of iprit, cyanide and phosgen were detected during blood tests". This was supported by documents, such as analytical bulletins specifying that cyanide ions had been detected. The Secretary-General appointed an expert team to carry out an investigation. The conclusion of the team's report was as follows: A number of events were presented to the team as being suggestive of the involvement of use of CW. However, all these events could also readily be explained by reasons other then CW; furthermore, none of the events as described to the team agreed with any pattern that would be expected from an attack involving CW. In summary, no evidence of use of chemical weapons was presented to the team.

8. Bosnia 1995

   In November 1998, Human Rights Watch released the results of a 2-year investigation of allegations that a chemical agent was used against Bosniaks fleeing Srebrenica during the war in Bosnia and Hercegovina in July 1995. Shortly after the fall of the United Nations-designated "safe area" of Srebrenica, survivors emerged from a long trek to safety with accounts that they had been attacked by Bosnian Serb forces during their flight with some type of CW, possibly the incapacitating agent BZ. Survivors gave consistent descriptions to Human Rights Watch of mortar shells that produced a "strange smoke" of various colours which did not rise but spread out slowly. Following these attacks, some of the marchers began to hallucinate and behave in an irrational manner. The USA government apparently took the allegations seriously enough to conduct an investigation, reported to have taken place in late 1996 or early 1997. The results of this investigation have not been made public. In late 1996 or early 1997, the USA intelligence community was reported to have information suggesting that CW may have been used in Srebrenica. The USA government's refusal to release the findings may, according to a USA official interviewed by Human Rights Watch, be based on the belief that making this information public might hurt the international effort to effect peace in the former Yugoslavia.

   Short of conclusive evidence that a chemical agent was used, Human Rights Watch called for a broader international investigation of the allegations. The UN Security Council was supposed to instruct UN agencies, such as the OPCW, the Office of the United Nations Secretary-General, or others to do so. Although the Human Rights Watch group made great efforts to initiate an international investigation by OPCW or others, nothing has been undertaken up to now. (Yugoslavia ratified the Geneva Protocol 1929, but has acceded to the CWC only on 20 May 2000).

9. South Africa 1980's-early 1990's

   In October 1998, the South African Truth and Reconciliation Commission released a report containing a chapter on a Chemical and Biological Warfare programme. The analysis of the commission shows that "the intention was not, and never has been, to develop an offensive capacity". And later it states, "The exception to this was the express intention of the military to develop crowd control agents". One of the conclusions was, "At best, the programme succeeded in producing for manufacture analogues of CR and BZ incapacitants, and in making local arrangements for producing protective clothing for troops against mass chemical and biological attack. At worst, the programme had criminal intent."

   The case attracted the international attention, but for obvious reasons there has not been any international investigation.

10. Sudan 1990's

There have been allegations since early 1990's that Sudan has been building up a CW production capability, possibly with the support of Iraqi experts. On August 20, 1998, US Tomahawk missiles destroyed the pharmaceutical factory of al-Shifa. The USA government claimed that bombing was to prevent Sudan from acquiring VX precursors, which were produced in the factory. After the bombing, Sudan asked the UN Security Council to investigate the case. However due to a USA veto, no action was taken. Later a report of the Monterey Institute of International Studies concludes "the balance of available evidence indicates that the facility probably had no role whatsoever in CW development."

It is probably not far-fetched to conclude that the Tomahawk attack and the unsuccessful request for a UN investigation was the main reason Sudan acceded to the CWC less than one year later.

Since 1995, members of the Sudanese People's Liberation Army (SPLA), the Sudanese Democratic Alliance (NDA) and Ugandan officials have accused government forces of using CW against civilians in the South Sudan. Little attention was paid to these allegations until in July 1999, when UN workers were affected by one of these alleged CW attacks during a visit to one of the villages, and then evacuated to Nairobi. Shortly afterwards, a British journalist accompanied by NGO aid workers went to the site, and investigated the case. The journalist brought some samples to Europe, where they were analysed. Apparently no evidence of CW could be found.

3. Non-compliance approach before Entry into Force of the CWC

From 1928 (the date of EIF of the Geneva Protocol) until 1997 (the EIF of the CWC), the Geneva Protocol was the legally binding treaty prohibiting the use of CW. The Protocol, however, contains no verification provisions and no provisions on how to deal with breaches. The above-described cases of breaches by Italy and Japan between the two WW illustrate this fact.

By the end of the 1970's the awareness was growing in the international community that allegations of the use of CW in a growing number of conflicts, such as Yemen, Vietnam, Laos, Afghanistan, would undermine the credibility of the Geneva Protocol. In order to address this concern, France, as the depositary of the Protocol, proposed to give the UN Secretary-General the power to investigate alleged uses of CBW. This initiative in 1982 led to the adoption of General Assembly Resolution 37/98 d. This resolution requested the Secretary-General to carry out investigations, with the assistance of experts, and then report to the General Assembly. The bases for the initiation of an investigation could be reports that were brought to its attention. The Secretary-General is further requested to compile and maintain a list of suitable and qualified experts and laboratories, elaborate guidelines for such investigations, with the assistance of experts, and collect documentation concerning the identification of signs and symptoms associated with the use of CW.

However, these provisions proved to be insufficient. Between 1982 and 1988, about 30 — more or less founded — allegation of use of CW had been raised and it proved necessary to increase the efficiency of the procedures elaborated as a consequence of Resolution 37/98 d. Consequently, the UN General Assembly adopted Resolution 42/37 c in 1987, which asked for the appointment of a group of experts to develop further technical procedures and guidelines. This expert group delivered its report in 1989 (A/44/561) in which a number of general principles are noted as well as detailed procedures for

• Submission of the allegation;
• Assessment and decision by the Secretary-General;
• Involvement of member states, experts and laboratories;
• Standing preparatory measures for investigations;
• Technical procedures for the investigation.

This report was endorsed by the General Assembly in 1990 and with these guidelines in hand, the Secretary-General had a valuable tool for the future requests for investigations of alleged use of CW. Based on these procedures, the Secretary-General had initiated investigations on several occasions, namely in Mozambique and Azerbaijan.

In the Mozambique case, the allegation was that "... following military operations by Mozambican government forces against forces opposed to the government, ... the government forces had been subject to an attack in which a CW was alleged to have been used." Although the information delivered by the Mozambican government was relatively scarce, the Secretary-General decided to proceed with an investigation based on a report from a Swedish investigation. The resulting investigation report was ambiguous, as mentioned in Chapter 2.6 above. As a result, Mozambique continued to accuse RENAMO and its alleged ally, South Africa, of having used CW. The investigation, therefore, could not be considered very satisfactory, as it did not contribute to a reduction of tensions. But at least the procedures outlined in the report A/44/561 proved to work reasonably well, although 8 weeks elapsed between the first request and the arrival if the team.

In a letter to the Secretary-General in June 1992, Azerbaijan accused Armenia of having used CW. In his note, the Secretary wrote, "Notwithstanding the time that has passed and the ambiguity of the reports, in view of the gravity associated with the possible use of CW ...decided that an investigation was warranted, ... ". This time, only 4 weeks elapsed between the request and the arrival on site of the team. As was pointed out in Chapter 2.7, the result was clearly negative and the subject never arose again; the mission could be considered a success.

In both cases, Mozambique and Azerbaijan, as well as the earlier cases of Iran and Laos, a request for a UN investigation from the targeted country went to the UN. All the other cases concerned civil wars, and the targeted parties were the rebel side. Therefore, since they were non-members of the UN, they had no possibility of filing an investigation request through official channels. Obviously, they were also not able to find a UN member state to take sponsorship for an investigation request.

In most cases (Yemen, and — after EIF of the CWC — Bosnia and Sudan), allegations of "rebel" groups were taken up by an NGO. However, the results of each of these investigations were unsuccessful. These organisations do not have the means and authority to conduct such investigations. The very specific know-how for such endeavours is still exclusively within governmental laboratories. However, the engagement of these laboratories needs some sort of political decision by responsible organisations. This makes it unlikely that involvement by these laboratories is possible without a mandate by the UN. The role of the NGO in the prevention and elimination of CW might be to ring the alarm bell. The strength of NGO is in humanitarian, medical educational, and other relief functions — not investigations.

UN investigations on alleged use of CW were successful when they were able to visit the site within a relatively short period after an event, such as in Iraq and Azerbaijan. Investigations after too long a period of time or in cases where the site could not even be visited were unsuccessful. It can be concluded that the UN, with its member states, has the procedures and the technical ability to successfully perform such investigations.

One can say that in all cases were an official request was made, the UN Secretary-General initiated an investigation. Allegations from insurgent movements were not taken up due to the fact that no official request from a member state could be filed. However, the Secretary General is not limited to initiate an investigation. According to the General Assembly's resolution, he can order an investigation in its own authority based on any type of report and does not need an official request by a member state. However, it is very unlikely that a solution can be found to give insurgent movements the possibility of requesting an investigation on the alleged use of CW unless they find a country willing to take the case to the UN.

4. The UNSCOM case

Much has been written and discussed concerning the UNSCOM experience and the problem of forcing Iraq to comply with the various UN resolutions in the aftermath of the Gulf War. However, this case is very particular in every respect:

Regarding CW, Iraq has not violated any international treaty. In the Gulf War, Iraq had not engaged CW. The sole fact of possessing CW does not violate the obligations of the Geneva Convention. As a matter of fact, the leader of the coalition forces (USA) was in possession of 30'000 t of CW at that time. During the Iran/Iraq War, the use of large amounts of CW by Iraq, in flagrant violation of the Geneva Convention, provoked almost no reaction from the international community (see Chapter 2.4). In contrast during the Gulf War a vigorous reaction against the Iraqi NBC-weapons capability took place. It was probably caused by different factors:

• Change of the political environment: end of the Cold War, general acceptance of a complete ban of CW;
• Fear that Saddam might have used CW against coalition forces;
• Use of long range missiles against the coalition forces and Israel;
• Revelations after the war about the extend of Iraq's nuclear weapons programme (a clear violation of the Nuclear Non-Proliferation Treaty, ratified by Iraq in 1968).

In the aftermath of the war, the UN Security Council aimed to ensure that Iraq would never be a thread to the regional and international security by adopting Resolution 687 on 3 April 1991. This resolution invited Iraq to reaffirm its obligation under the Geneva Protocol and to ratify the BWC (ratified subsequently by Iraq in April 1991). The resolution further decided that Iraq shall unconditionally accept the destruction of all CBW and all related research, development and production facilities, anticipating, in a way, the obligation of the then future CWC. In the same resolution, it was also decided to destroy all long-range ballistic missiles and nuclear weapons installations. To implement this programme of enforced disarmament, the Security Council established UNSCOM, an agency composed of multinational experts. (The nuclear disarmament was supervised by the International Atomic Energy Agency with the assistance of UNSCOM.) Iraq accepted the UN resolution and the UNSCOM inspection, but in practice, did everything possible not to fulfil its obligations. In an excellent paper "Lessons from the UN experience in Iraq," Jonathan B. Tucker, from the Monterey Institute of International Studies, summarised the experience of monitoring and verification in a non-cooperative environment in eight lessons for future regimes:

• Intrusive on-site access is a necessary, but not sufficient, condition for obtaining evidence of non-compliance.
• A multilateral inspection regime can be effective only to the extent that it is coupled with accurate and timely intelligence.
• Short notice inspections can increase the likelihood that a violator will make mistakes and leave behind telltale indicators of illicit activity.
• The combined use of various monitoring tools (e.g., overhead surveillance, monitoring trade flows, visual inspection, and sampling and analysis) can yield valuable synergies.
• An effective way to investigate clandestine WMD programmes is to identify and interrogate key managerial and technical personnel.
• Only one agency should be assigned responsibility for coordinating all aspects of an international inspection regime.
• Effective verification cannot be based on periodic on-site inspections alone, but requires the integration of data from a wide variety of sources to monitor patterns of host country activity over an extended period of time.
• In the future, the task of verifying non-proliferation treaties and drawing compliance judgements will grow more difficult as technologies capable of supporting deception and denial efforts become more widely available.

There is a fundamental difference between operating in a cooperative environment, compared to a non-cooperative environment. In the CWC verification regime discussed below, a State Party intends to show to the inspectors its compliance or at worst, tries to defeat allegations of non-compliance. In the Iraq case, where a UN resolution asked for a complete disarmament of CW and its installations, Iraq did everything to conceal its weapon programme and to mislead the inspectors. But there is hope that this is, and will be, a unique case. As Tucker concludes, few other proliferators have the financial and technical resources required to pose such a formidable challenge to an international monitoring and verification regime.

In 1999 UNSCOM has been liquidated and a successor organisation is being formed. If this organisation UNMOVIC will ever be operational is unclear, Iraq is not showing any sign to be willing to accept it. On the other hand it is not clear why the Security Council is leaving the OPCW completely aside. It has not even discussed the possibility of requesting Iraq to accede to the CWC, similar to its request to ratify the BWC. In such case the OPCW could have at least taken over the monitoring tasks similar to the IAEA for the nuclear issues.

5. Non-compliance approach under the CWC regime
The role of OPCW

The obligations under the CWC are much more extensive than those under the Geneva Protocol. The Convention has two principle goals: the destruction of existing CW and the prevention of the possibility of the reappearance of them. To achieve these goals, the convention assigns a number of obligations to the States Parties, inter alia

1. Adopting the necessary measures to implement its obligations under the convention, particularly enacting legislation penalising activities prohibited under the Convention.
2. Declaring and destroying all CW and its production capabilities.
3. Declaring all facilities producing scheduled dual-use chemicals, as well as all imports and exports of these chemicals.
4. Accepting routine inspection to verify the declarations.
5. Permitting challenge inspection in case of serious concerns of non-compliance.
6. Supporting investigations of alleged use of CW.

Compliance with these obligations are supervised and verified by the Technical Secretariat of the OPCW through surveys (implementing legislation) or inspections by professional full-time inspectors. These inspections are basically confidence-building measures and give the States the possibility to demonstrate compliance. This is valid for all types of routine inspection, be it stockpiles of CW, destruction, conversion or civil production of dual-use chemicals. For each inspection, a factual report is established containing 'facts relevant to compliance with this Convention'. This report is confidential and will not be distributed within the Organisation. It is up to the Director-General to inform the EC in case of a possible non-compliance.

In cases of serious compliance doubts, any State Party can request the OPCW to initiate a challenge inspection on the territory of another country. The request has to be accompanied by 'appropriate information on the basis of which a concern has arisen regarding possible non-compliance.' The inspection will take place on short notice. Only if the EC votes by a three-quarter majority that the request is unfounded, will the procedure be stopped. The inspected state may neither refuse the inspection nor improperly restrict the access of the inspection team. The goal of the inspection is to — hopefully — give the inspected state the occasion to demonstrate that the allegations were unfounded, or give the organisation the proof of a violation of the Convention.

In case of allegations of the use of CW, any State Party can request an investigation, which will be performed by OPCW inspectors, possibly with the assistance of experts from Member States.

The convention stipulates that the OPCW shall take the necessary measures to ensure compliance. In cases of non-compliance, the EC shall make recommendations to the CoSP to redress the situation and to ensure compliance. It is up to them to decide how this best could be achieved. The convention is relatively vague about the procedures how to determine compliance or non-compliance. Nevertheless, there are a number of provisions, which imply that both the EC and the CoSP can make decisions.

In case of failure to redress the situation the Convention lists three measures to be taken by the CoSP to enforce compliance:

• To restrict or suspend the State Party's rights and privileges under the Convention. This could mean, for example, the withdrawal of the right to vote, the suspension of cooperation and assistance, or even the suspension of trade with scheduled chemicals.
• To recommend to States Parties collective measures in conformity with international law. Although the term sanctions is not used in this provision, the term 'collective measures' would most certainly include sanctions.
• In cases of particular gravity, the issue will be brought to the attention of the UN General Assembly and the UN Security Council. It would be up to the Security Council to decide how the problem could best be solved and will be, of course, a matter of political debate.

The status of compliance

With respect to the two main goals of the CWC — destruction of CW and prevention of the possibility of the use of CW — it is reassuring that there have not been any non-compliance noted since EIF of the Convention. It seems that all CW and their respective production facilities have been declared and destruction, or conversion to civil installations, has either been started or is planned to start soon. Furthermore, no challenge inspections or investigation of alleged use have been requested. There are allegations, for example, that Iran has not fully declared its CW related facilities and is still maintaining a secret CW programme. However, apparently no country has established enough facts to support these allegations. Possibly one attempts to solve this problem by using the "Procedure for requesting clarification" foreseen in the CWC.

One should note that many countries are still in a learning curve and the different obligations of the CWC have led to a multitude of "minor" non-compliance cases. Many of them have stemmed from the tight time schedule for declarations, such as not meeting the deadline of the deposition of the declarations. It is also understandable that probably most of the country's declarations of industrial facilities might not be absolutely comprehensive and national authorities might have missed some of their declarable facilities in their first survey. The OPCW community has labelled this non-compliance type as "technical non-compliance". At present, this expression is probably correct and understandable. However, it is very difficult to draw a line between the "technical" and the "real" non-compliance. Is the incompleteness of the industrial declaration of a State Party a simple error of omission or a deliberate act? Therefore, it is highly desirable that the number of countries in "technical non-compliance" will decrease drastically in the near future.

Another case of non-compliance was the lack of declarations. Some 30 Member States out of a total of about 130 had at the end of 1999 still not submitted their initial declaration. Others, such as the USA, had only given partial declarations. In these countries, no inspections had been possible due to the lack of declarations. Therefore, the status of compliance was unknown. The EC and the CoSP considered this a serious problem and have made several appeals to remedy the situation, but apparently with little success. Only in the very recent period with a special effort of the OPCW it has been possible to finally convince these State Parties to submit its initial declarations prior to the 5th CoSP in May 2000. As a consequence, the first industrial inspection in USA took place beginning of May 2000.

Another source of non-compliance is the lack of implementing legislation. More than half of all States Parties has not yet passed a national legislation. This fact has been discussed in the EC, but up to now no further action has been taken. The first attempt to remedy the situation was made at the last CoSP by passing a resolution requesting State Parties to enact legislation in order to implement the CWC nationally.

Although one can conclude that no serious violations of the CWC have been registered, there have been a multitude of non-compliances regarding a number of obligations put down in the Convention. The general view is that after the initial grace period, compliance must be rigorously observed to ensure the credibility of the CWC. Only a success of the CWC will ensure that the Convention will help other arms control efforts.

 

Assessing the Compliance System

The treaty provides for the most comprehensive and intrusive system of verification to date of any disarmament treaty applied on a global scale. Additionally, the CWC contains provisions for economic incentives in its article on assistance, and on economic and technological development

The System of detecting non-compliance comprises two elements:

The first is the OPCW routine inspection. International full-time inspectors periodically check all CW sites, and activities at destruction facilities are permanently monitored. All installations producing dual-use chemicals or having the capability of producing them are inspected. The frequency of inspection is adapted to the threat they pose to the aims of the Convention. It is generally accepted that the probability of prohibited activities taking place, is minimal. The experience gained in the first three years of the CWC show that inspections run smoothly and the inspectors manage the challenge of balancing intrusiveness against commercial (or military) interest quite well — being intrusive enough to detect possible illegal actions, but not so intrusive as to compromise confidential business information. The experience explicitly shows that the fear of certain industries (and administrations) that industry inspections are being misused for industrial espionage is completely unfounded.

The second element is the challenge inspection. A country suspecting an illicit action can initiate an inspection on short notice. This is the point were the national means of detection and intelligence information of the individual states play an important role. They can give clear indications of were such inspections should take place. This is also an opportunity for NGO's to feed in respective information on knowledge of illegal activities. However, their role is probably more in pushing for universal adherence to the Convention, for implementing the convention in the individual countries and in general terms, ensuring compliance. In this field, there has reportedly been some success, notably in the ratification process in USA and Russia.

Experience in trial inspections in various countries has shown that the probability of detecting illicit activities in a challenge inspection is high. The detection ability of modern technology is extremely high. Even after extensive cleaning operations, the chances are high that the presence of undeclared scheduled chemicals can be proven. It is probably true that the production of small quantities of forbidden chemicals could pass unnoticed. However, as quantities grow to militarily significant amounts, and the country is starting to weaponise it — putting it into grenades and start tests and training — the likelihood of detection rises dramatically.

Arguments have been used that the UNSCOM case showed clearly that detection of a clandestine CW production is impossible. Actually, the contrary is the case. Only due to highly intrusive, short notice inspections without the right of refusal (equivalent to CWC challenge inspection) was it possible to uncover the CW programme in Iraq. Besides that, these arguments leave a side the fact that the UNSCOM verification is a completely different situation, as was pointed out in Chapter 4. The atmosphere in which the inspection took place was not only unfriendly — as it might be expected in a CWC challenge inspection — but hostile. Iraq tried to use every trick to mislead the inspectors.

Another argument is the high cost for industry. Again, this is a completely unfounded argument. On average, a chemical plant site receives approximately 10 inspections a year, such as inspections by environmental agencies, FDA, clients or quality audits. To add one OPCW inspection about every three years can hardly increase the cost dramatically.

A further argument is that the most dangerous nations stay outside the CWC. Indeed if we make a selection from the non-members of the CWC we may get the following list: Egypt, Iraq, Israel, Libya, Myanmar, North Korea, Serbia, Syria, Taiwan — all countries with alleged CW programmes. But this is actually an argument, which supports the importance of the CWC. Trade, support, and assistance to States within the CWC are encouraged and without restrictions; whereas relations to non-member states are clear: no assistance, no trade with critical chemicals and technologies, etc. Thus, the situation for governments, as well as trade and industry, after EIF became much clearer.

The verification system of the CWC is working and the chances of detecting non-compliance are high. The big unknown is how the OPCW will deal with the established non-compliance. Up to now, experiences have not been very encouraging. As mentioned above in the case of the initial declaration which has been missing for almost three years, the OPCW has been shown to be completely powerless. No ideas have been put forth on how to address the situation. Although many countries consider the situation to be a case of serious non-compliance, no remedy was found other then appeals to the countries to comply. But the situation is still not too bad. Due to the fact that declarations and inspections create a high degree of transparency, and that there is almost no chance of stopping a requested challenge inspection (it would need a three quarter majority to be aborted), at least the fact of a non-compliance would become known. It would then be up to the individual states to draw their own conclusions and/or to raise the issue in the UN.

6. Enforcement

A comprehensive overview on this subject by Jozef Goldblat is presented at the International Security Forum in November 2000 in Geneva. Little needs to be added. In principle, there are two possible approaches — a cooperative approach and a non-cooperative approach. By cooperative approach, a stick and carrot system — or rather carrot and stick system - is meant, whereby through incentives and collective actions, the country which might be in non-compliance is pushed to accept the obligations under the CWC. However, pressure must be tempered with common sense, and inducement, not hammering, is required.

In a non-cooperative approach, a policy of containment, blocking the sources of external technical support, and possibly sanctions up to military actions, is meant.

The status of membership should actually make it easy to choose which way to go. States within the CWC show the willingness to comply with the obligations of the convention. With the above-mentioned system of incentives and disincentives, wavering countries should be kept, or put back, on the right track. Whereas with countries outside the CWC and not willing to give up the option of CW, decisive action is required. The international community should act accordingly with export bans on the appropriate technologies, sanctions and, in cases of use of CW, military action.

 

 

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