The CWC at 25: from verification of chemical-weapons destruction to attribution of their use

ABSTRACT

This article analyzes the shifting focus of the Chemical Weapons Convention (CWC) during the first 25 years of its implementation, from the verification of destruction of declared chemical-weapon (CW) stockpiles to the attribution of CW use. The article identifies the repeated use of chemical weapons by Syria and the resultant creation of a new attribution norm under the CWC as a critical juncture in the regime’s evolution. Repeated calls for accountability for the use of so-called Novichok nerve agents for assassination purposes serve as the first manifestation of the new attribution norm. The article further outlines steps CWC states parties should take in the context of the Fifth CWC Review Conference in May 2023 to prepare the CW-prohibition regime for its next 25 years of operation by (1) adapting the implementation of key regime norms following the anticipated completion of CW destruction later in 2023 and (2) incorporating the investigation and attribution work of the Investigation and Identification Team into the programmatic work of the OPCW.

KEYWORDS:

• chemical weapons
• prohibition
• disarmament
• attribution
• Chemical Weapons Convention (CWC)
• Organisation for the Prohibition of Chemical Weapons
• Syria
• Russia

Introduction

On April 29, 2022, the Chemical Weapons Convention (CWC) and the Organisation for the Prohibition of Chemical Weapons (OPCW) celebrated their 25th anniversary. Since the convention’s entry into force in 1997, the OPCW has verified the destruction of more than 99 percent of chemical weapons (CW) declared by eight CW possessor states. This article analyzes the evolution of the CW-prohibition regime with the CWC at its core as it has moved from a focus on the verified destruction of declared CW to ensuring the attribution of CW use, and it outlines the steps necessary to prepare the OPCW for the next 25 years. The Fifth CWC Review Conference, taking place from May 15 to May 19, 2023, provides an opportunity for charting the course of CWC implementation for the next five years and beyond.

The prohibition of CW encompasses several core normative guideposts, including the prohibition of the development, production, acquisition, stockpiling, transfer, and use of chemical weapons.¹ While implementation of the CWC over the past 25 years has generally been successful across the diverse set of norms that the treaty contains,² repeated CW use in the Syrian conflict, as well as the assassination attempts in the United Kingdom and Russia involving so-called Novichok nerve agents, have challenged the nonuse norm. Yet, while some already see the end of chemical weapons’ “system of restraint” looming,³ such assessments tend to overlook CWC states parties’ collective responses to violations of the nonuse norm and to underestimate the persistence of international regimes and institutions more broadly.⁴

This article discusses the evolution of the CW-prohibition regime and the implementation of its central norms from a historical-institutionalist perspective.⁵ This approach generally addresses continuity and change in the development of international institutions and regimes by focusing on founding moments, which put the institution on a particular trajectory. Clearly, the CWC’s entry into force on April 29, 1997 marks the founding moment for the CW-prohibition regime. The resulting path dependence leads historical institutionalists to expect more continuity than change in the pursuit of institutional goals. Again, this has been borne out in the CW-prohibition regime, where, for much of the past 25 years, the focus has been on implementation of the CW-destruction norm by CW possessor states. However, the preponderance of continuity in regime implementation must not be confused with stasis: institutions, such as the CW-prohibition regime, do evolve and adapt to both internal and external challenges. Yet, this does not result in revolutionary changes to the regime. Instead, one can observe “the prevalence of incremental reform over stasis and fundamental transformations.”⁶ These incremental changes have been chronicled in the OPCW annual reports and monitored by think tanks and arms-control and disarmament organizations.⁷ Incremental changes have affected the implementation of both the abovementioned core regime norms and a set of additional normative guideposts. The latter deal, for example, with ensuring national implementation of treaty provisions, facilitating capacity development and international cooperation in the peaceful uses of chemistry, and monitoring of scientific and technological (S&T) developments of relevance to the CWC.⁸

In addition to incremental regime adjustments, many of which were triggered by internal challenges arising from treaty implementation, the CW-prohibition regime was also confronted with exogenous shocks, most notably repeated CW use in Syria and elsewhere, which began before that country joined the CWC in 2013. From a historical-institutionalist perspective, the repeated CW use in Syria and the response by CWC states parties, which culminated in a special session of the OPCW’s Conference of the States Parties (CSP) in June 2018, mark a critical juncture for the regime. The multiple uses of CW prompted CWC states parties to add a new attribution norm to the CW-prohibition regime.

Critical junctures have been defined as “relatively short periods of time during which there is a substantially heightened probability that agents’ choices will affect the outcome of interest.”⁹ In other words, critical junctures “interrupt” long periods of path dependence and can, in turn, serve as a new founding moment for the future trajectory of the institution. Understood in this way, the repeated calls by an increasing number of CWC states parties for clarification of the poisoning of the Russian opposition figure Alexei Navalny represent the first manifestation of the new attribution-focused path that has been charted for the CWC and its implementing organization.

These regime challenges and adaptations are taking place against the backdrop of the approaching completion of the verified destruction of CW in the United States, scheduled for September 2023.¹⁰ Since the CWC’s entry into force, verification of CW destruction activities has taken up a large part of the OPCW’s resources. Because the CW destruction norm soon will be fully implemented,¹¹ verification activities conducted under the CWC will change significantly. This will give CWC states parties an opportunity to use some of the freed-up resources for the other priority tasks of the organization. Given diverging views within the OPCW membership on the relative weight of such priorities, reaching an agreement will require the political will to compromise and would benefit from focused preparatory work by the open-ended working group set up to prepare the Fifth CWC Review Conference. This would put CWC states parties at the conference in a position to provide strategic guidance for the next five years and beyond.¹²

The first part of the article will focus on the key area of CWC implementation over the past 25 years, which is implementation of the verification provisions related to the CW-destruction norm and to activities not prohibited under the CWC.¹³ A discussion of violations of the nonuse norm—which from 2013 onward have emerged as a challenge to the CW-prohibition regime, mostly in relation to the repeated cases of CW use in Syria—will follow. Debates over who was responsible for the chemical attacks and how to respond to such treaty violations have led to a polarization among CWC states parties. The attempted assassinations with Novichok nerve agents of first the former Soviet/Russian spy Sergei Skripal and his daughter and subsequently Navalny have further broadened the rift between Russia and Western CWC states parties. The second part of the article will discuss the need both to refocus OPCW priorities once the task of CW destruction has been completed and to firmly integrate into the practice of CWC implementation the new attribution norm created in response to the repeated instances of CW use. Throughout, the article will draw heavily on official documents issued by the OPCW.¹⁴

The first 25 years of CWC implementation

Routine verification of treaty compliance: activities not prohibited and the destruction of declared CW stockpiles

The CWC’s elaborate and robust verification system—which the OPCW implements jointly with its member states that either are CW possessors or have so-called Article VI facilities on their territory—represents a cornerstone of the treaty’s implementation.¹⁵ This section will first briefly discuss the CWC’s routine verification system. It then will address nonroutine verification tools, both those foreseen in the CWC and those introduced in response to CW use in Syria.

Since the CWC’s entry into force in 1997, the OPCW has verified the destruction of over 99 percent of declared CW stockpiles, amounting to more than 72,000 metric tons of chemical agents. CWC Article VI complements this CW-related work. It specifies which activities with toxic chemicals are not prohibited under the convention and contains the basic provisions of the industry-verification regime. This, in turn, has served to uphold the confidence of CWC states parties that toxic chemicals are not diverted for prohibited purposes. Details of the verification system are contained in the main text of the convention and in its Annex on Verification. Accurate, timely, and complete declarations by states parties are crucial for the CWC’s routine verification regime, as they form the basis of OPCW inspection activities. Comparing declarations with realities on the ground allows OPCW inspectors to confirm whether states’ declarations about either CW stockpiles (where applicable) or chemical industry match actual numbers and activities.

Detailed declaration requirements and destruction targets and deadlines for CW possessor states have been written into the treaty, enabling the OPCW’s CW-related routine verification activities such as systematic on-site verification by OPCW inspectors of states parties’ storage and destruction activities.¹⁶ Few CW possessor states complied with the intermediate destruction targets and none met the deadline for complete destruction by 2007, 10 years after the CWC’s entry into force.¹⁷ The states parties therefore agreed by consensus, at the CSP in December 2006, to extend the destruction deadline in accordance with the CWC Verification Annex. For Libya, Russia, and the United States, the CSP accepted the longest possible extension allowed by the CWC, namely five years, until April 29, 2012. When it became clear that those three countries could not meet this ultimate deadline, the CSP again addressed the matter in late 2011. It required possessor states to determine the earliest possible date by which they could comply with their destruction obligations, thereby transforming the CW-destruction norm from one with a defined deadline to one in which possessor states could determine the end date. From a historical-institutionalist perspective, this change in normative content is significant as it marks the first and only conversion of a regime norm.¹⁸ Contrary to the 2006 extension decision, which was by consensus, in 2011 the CSP had to vote on the extension, with Iran being the sole state party rejecting it.¹⁹ Libya and Russia had both completed the destruction of their declared stockpiles by late 2017.²⁰

The second pillar of the CWC’s routine verification system addresses activities that are not prohibited for states parties with declarable facilities or plant sites.²¹ This part of the verification system seeks to confirm the absence of prohibited activities through states parties’ submission of declarations—when the country joins the CWC and annually thereafter—and data monitoring and on-site verification of facilities through the OPCW. The CWC distinguishes among four categories of chemicals, three of which are listed on the so-called schedules in the Annex on Chemicals, depending on the risk they pose to the object and purpose of the convention, as well as the extent of their use in the chemical industry.²² The fourth category was agreed upon late in the CWC negotiations and is focused on so-called discrete organic chemicals, and chemical compounds containing phosphorus, sulfur, or fluorine if produced above certain quantitative thresholds. These chemicals and related “other chemical production facilities” must be declared to the OPCW and over time have come to require the most verification resources among industry inspections. It is noteworthy, however, that the schedules of chemicals are a tool for verification purposes and do not constitute a definition of what a chemical weapon is.

The implementing of routine verification measures under Article VI began in stages with Schedule 1 and 2 inspections commencing immediately after the CWC’s entry into force. By the end of the first decade of CWC implementation, the number of annual Article VI inspections had increased from 28 in 1997 to 200 in 2007, requiring difficult negotiations in most years on their exact number and distribution across the four categories. In 2011, the OPCW Executive Council agreed on a set of policy guidelines for determining annual Article VI inspections. Based on these guidelines, the number of inspections grew to 241 and has remained at that level since 2014, with more than half of them devoted not to chemicals listed on the schedules but to “other chemical production facilities.”²³ Any attempt to increase the number of inspections above 241, once the verified destruction of declared CW is complete, would likely face considerable political opposition.

The CWC contains two types of nonroutine inspections or investigations that states parties can request in case of suspected noncompliance: challenge inspections and investigations of alleged use of CW.²⁴ However, no state party has requested either of the two since the CWC’s entry into force. Instead, in 2014, OPCW Director-General Ahmet Üzümcü established, in accordance with his mandate to uphold the object and purpose of the convention, both a Declaration Assessment Team (DAT) and a Fact-Finding Mission (FFM) in response to increasing evidence of a continuing offensive CW program in Syria and the country’s lack of full cooperation with the OPCW. These additions to the OPCW’s verification toolbox have demonstrated the organization’s adaptability in the face of unexpected challenges.

Responding to CW use in Syria: from fact finding to attribution

The FFM has investigated continued reports of suspected CW use from 2014 on, with a focus on establishing the facts surrounding allegations of the use of sarin and sulfur mustard, as well as chlorine as a weapon. FFM reports subsequently formed the basis of the work of the United Nations-OPCW Joint Investigative Mechanism (JIM), which the UN Security Council established in 2015.²⁵ Its mandate involved the identification of the perpetrators of CW attacks and was the first manifestation of a newly emerging attribution norm in the CW-prohibition regime. However, responsibility for implementing the decision was originally placed under the authority of the Security Council rather than the OPCW.

The JIM issued several reports confirming the FFM’s findings and implicated both Syrian government forces and insurgent non-state actors.²⁶ In November 2017, after three Russian vetoes prevented the UN Security Council from extending the JIM’s mandate,²⁷ some OPCW member states sought to transfer the task of attributing CW use to the OPCW. Against the background of the poisoning of Sergei Skripal on British territory, the United Kingdom played an active role in establishing the attribution norm in the OPCW framework.²⁸ A special session of the CSP in June 2018 confirmed the continued necessity of identifying perpetrators, organizers, sponsors, or actors otherwise involved in CW attacks; tasked the OPCW Technical Secretariat with the collection of evidence to facilitate attribution; and invited the director-general to submit proposals to establish such independent, impartial, expert arrangements. This led to the establishment of the Investigation and Identification Team (IIT) within the Technical Secretariat.²⁹ Like the JIM before it, the IIT would look at cases of alleged CW use where the FFM had already concluded that CW use had actually taken place. However, the IIT would not revisit cases that the JIM had already addressed. This new mandate for identifying the perpetrators behind a CW attack clearly moves beyond the traditional verification measures implemented by the OPCW. Before then, the Technical Secretariat was limited to determining whether or not an attack had occurred. Establishing this new attribution norm in the context of the CWC has led to a polarization of the OPCW membership. While the majority of member states supports the establishment of the IIT, a small but vocal group led by Russia and Syria fundamentally opposes the attribution mandate.

The IIT’s first report, in April 2020, covered CW use in Ltamenah, Syria in March 2017. The report concluded that on three occasions, the Syrian Air Force used either sarin or chlorine.³⁰ The second IIT report, issued in April 2021, concluded

that there are reasonable grounds to believe that […] during ongoing attacks against Saraqib, a military helicopter of the Syrian Arab Air Force […] hit eastern Saraqib by dropping at least one cylinder. The cylinder ruptured and released a toxic gas, chlorine, which dispersed over a large area affecting 12 named individuals.³¹

Based on the IIT’s first report, the OPCW Executive Council in July 2020 condemned the CW use reported, requested Syria to redress the situation, and decided to refer the matter to the CSP.³² At its 25th session, in April 2021, the CSP then took the unprecedented step of stripping Syria of some of its rights and privileges under the convention, such as its voting rights in the policy-making organs.³³ These will be reinstated only once the OPCW director-general has reported that Syria has returned to full compliance with the convention. According to Arias’s December 2022 monthly report—the 111th of its kind—to the Executive Council, this is not the case.³⁴

Additional challenges to the nonuse norm: the Novichok assassination attempts in the UK and Russia

Although the numerous instances of CW use in Syria have dominated discussions at the OPCW from 2013 to 2017, this changed in spring 2018 with the attempted assassinations of Sergei Skripal in the United Kingdom in March 2018 and Navalny during domestic air travel in Russia in August 2020.

The first case involved a Novichok nerve agent and resulted in the first-ever amendment of the CWC Schedule on Chemicals, a key tool supporting implementation of the declaration and inspection norms of the regime. British authorities quickly identified the toxic chemical used in the Skripal poisoning as belonging to the Novichok group of nerve agents.³⁵ The OPCW confirmed these findings following two technical-assistance visits at the United Kingdom’s request and subsequent analysis of the samples taken at two OPCW “designated laboratories.”³⁶ Confirmation of the Novichok agent set in motion a range of activities at the OPCW, with the aim of including such nerve agents in the CWC schedules. The OPCW Executive Council met in several extraordinary meetings, during which it considered two competing proposals to amend Schedule 1, which contains known chemical-warfare agents and some especially dangerous precursor chemicals. Canada, the Netherlands, and the United States submitted a joint proposal, to which Russia presented a set of alternatives. Both the joint and the Russian proposals were processed according to the procedures set out in CWC Article XV, paragraphs 4 and 5. This included a review by the director-general, who had also commissioned an analysis by the OPCW Scientific Advisory Board. Taking these inputs into account, the Executive Council at its 62nd meeting, in January 2019, voted to adopt the joint proposal. At its 63rd meeting, in February 2019, the council recommended rejection of the Russian proposal for amending the schedules.³⁷ However, as both recommendations drew an objection from one state party each, they had to be dealt with “as a matter of substance by the Conference at its next session” in accordance with Article XV, paragraph 5(e) of the CWC. The states parties objecting were Russia in the case of acceptance of the joint proposal and Burundi in the case of rejection of the Russian proposals. Following further modifications by Russia to its proposals, the CSP at its 24th session, in November 2019, adopted both the joint and the Russian proposals. They entered into force in June 2020.³⁸

Shortly thereafter, in August 2020, Navalny fell seriously ill on a domestic flight. After first being treated by Russian doctors, he was later flown to Germany for further treatment. Once it was determined that Navalny had been exposed to a highly toxic substance, the analysis of the poison by a German, a French, a Swedish, and two of the OPCW's designated laboratories revealed that it belonged to the group of Novichok nerve agents. Although the OPCW's 2019 action added some Novichok agents to the CWC schedule, it did not include the one that was used to poison Navalny.³⁹ In the words of Kenneth D. Ward, the US ambassador to the OPCW, “Russia has advertised to the world that it illicitly maintains a chemical weapons program, possesses Novichok nerve agents, and has no compunction about using such outlawed weapons against its adversaries.”⁴⁰ Although Russia initially proposed that the OPCW send an expert team to Russia to investigate the incident, and Arias confirmed the availability of a team on short notice, such a visit never took place.⁴¹ In order to clarify the situation, the United Kingdom and 44 co-sponsoring CWC states parties on October 5, 2021, used the Article IX (2) procedure to ask Russia for four specific points of clarification.⁴² Although this was exactly the procedure that Russia had told the United Kingdom to use in the aftermath of the Skripal poisoning in 2018, Russia quickly issued a lengthy compilation of documents that did not address the four specific questions. Rather, it accused France, Germany, Sweden, and the United Kingdom of misusing the provisions of the CWC for political ends. With this, Russia rejected the least confrontational way to address existing compliance concerns.⁴³ The states involved in the matter subsequently exchanged several more diplomatic notes without making any progress in clarifying the issue. During the 26th session of the CSP in November–December 2021, an even larger number of CWC states parties—55 rather than 45—issued a request for clarification from the Russian government.⁴⁴ Regardless of the remaining uncertainty concerning details of the case, the Navalny poisoning, which involved yet another variation of a Novichok nerve agent, clearly demonstrates the limitations of list-based approaches for operationalizing generic prohibitions as expressed by the CWC.⁴⁵

In addition to discussions within the OPCW, the case has also attracted the interest of human-rights experts. Two special rapporteurs appointed by the UN Human Rights Council have demanded an independent international investigation into the poisoning of Navalny in order to hold the perpetrators to account.⁴⁶

In sum, the focus of CWC implementation has changed significantly since the treaty’s entry into force some 25 years ago, with attention shifting from the verified destruction of declared CW stockpiles to the identification of those responsible for their use. The approaching completion of CW destruction in the United States provides an opportunity to adapt the verification system to the evolving security context, in which concerns over a weakening of the norm against CW use have emerged in recent years. However, as Nicole Deitelhoff and Lisbeth Zimmermann have shown, one of the factors determining norm robustness in the face of a challenge is the response by stakeholders to the norm violation.⁴⁷ The collective response of the majority of CWC states parties in condemning any CW use, amending the Schedules on Chemicals, and demanding accountability of those responsible thus points to a significant robustness of the norm against CW use. This response in the CWC context has been reinforced by 40 states parties and the European Union joining the International Partnership Against Impunity for the Use of Chemical Weapons, a French initiative started in early 2018.⁴⁸ As one observer has summarized, the partnership “presents clear alternatives: become a part of the continued obstructionism within international institutions, or work with other nations to take action to protect the norm against CW use.”⁴⁹

Preparing for the next 25 years

In preparing for the next 25 years of CWC implementation and ensuring the continued effectiveness of the regime norms—or their strengthening, where gaps exist—the OPCW and its member states can confidently rely on past practice as a guide. In addition, they have at their disposal forward-looking documents, such as the 2011 report from an expert group chaired by Rolf Ekéus and the 2015 “vision paper” produced by the Technical Secretariat.⁵⁰ One might assume that such documents have become outdated over time. However, the destruction of declared CW stockpiles, issues related to Syrian chemical weapons, and the Schedule 1 amendment to include new nerve agents have taken up a lot of the OPCW’s time and attention over recent years. As a result, CWC states parties have not yet undertaken a comprehensive review and adaptation of the OPCW’s priorities in implementing the CWC in a post-destruction world. However, for the biggest part of the OPCW’s operations, a radical departure from the historical course of action seems unlikely: as noted above, most change in the CW-prohibition regime tends to occur in incremental steps. Critical junctures such as the repeated CW use in Syria and the response by CWC states parties are exceptions to this normal pattern of evolutionary adaptations.⁵¹

Nonetheless, there exists a window of opportunity now to ensure the OPCW remains fit for purpose with both the Fifth CWC Review Conference and the final steps in the US destruction of its stockpile scheduled to take place in 2023. To this end, CWC states parties should take two main steps: First, they should agree on adapting the implementation of existing regime norms to a changing environment. Second, they should seek to reach an agreement on how to continue to implement the new attribution norm. Both steps are described in further detail below. Any objection by one or more CWC states parties to undertaking these two tasks would cast doubts on their willingness to ensure the OPCW’s future relevance and to sustain its response to violations of one of the CWC’s most central provisions.

In order to reach both goals in the context of the upcoming review conference, they need to be embedded in the broader CWC review process, which includes review conferences held every five years. States parties started moving toward these goals at EC-99, the March 2022 meeting of the Executive Council, by setting up an open-ended working group (OEWG) led by the Estonian ambassador to the Netherlands and permanent representative to the OPCW, Lauri Kuusing.⁵² In the second half of 2022, the OEWG held several meetings, during which the OPCW Technical Secretariat briefed states parties on a variety of areas of CWC implementation, such as CW destruction, industry verification, international cooperation and assistance, and external engagement. These presentations, as well as subsequent discussions among states parties, informal consultations held by Kuusing, and additional inputs from CWC stakeholders in the chemical industry and civil society, have informed the January 2023 draft report of the OEWG. After further discussion among states parties, Kuusing will submit the final OEWG report to the Fifth Review Conference. Ideally, the OEWG would adopt its report by consensus, as this would indicate broad political support and less opposition to be expected at the conference itself.⁵³

Adapting the implementation of existing regime norms

While some aspects of CWC implementation will have to be adapted with the complete destruction of declared CW stockpiles, the norms of the CW-prohibition regime will retain their validity. Adaptations are likely to occur only at the level of their implementation, with decisions by the CSP or Executive Council providing some high-level guidance and the Technical Secretariat operationalizing this in the OPCW’s day-to-day work. Despite completion of CW destruction, the Technical Secretariat needs to retain its specialist CW-related knowledge and expertise in case one of the CW possessor states parties retains undeclared stockpiles, a non-possessor state party develops CW, or one of the four remaining states not yet party to the treaty—Egypt, Israel, North Korea, and South Sudan—joins as a CW possessor state. North Korea, which some suspect of possessing as much as 5,000 metric tons of chemical weapons, would pose the biggest challenge in that regard.⁵⁴ The 2011 advisory-group report already summed up this need by stating that

[e]ven after the complete elimination of all chemical weapons stockpiles world-wide, the OPCW should remain the global repository of knowledge and expertise with regard to chemical weapons disarmament, the verification of their non-possession and non-use, and a repository of knowledge about their destruction.⁵⁵

The 2015 vision paper echoed this assessment, noting that the organization will need to retain sufficient capacities to deal with non-stockpile-related CW issues, such as old and abandoned CW, new CW possessor states, and the “threat of use of chemical weapons by States or non-State actors.”⁵⁶ These expectations were reiterated in the chairperson’s report of the Fourth CWC Review Conference in 2018.⁵⁷

Since 2019, the OPCW has started to address this issue by hiring a senior knowledge manager and introducing a “new strategy to consistently identify, develop, preserve, and transfer knowledge—entitled Continuous Knowledge Management.”⁵⁸ The 2021 OPCW program and budget tasked the Technical Secretariat with “continu[ing] to reflect its strategy, action, and activities in relation to knowledge management at the programme level”⁵⁹ across the OPCW’s activities. The focus on knowledge management, especially knowledge retention, in the organization supports the growing emphasis on preventing the re-emergence of chemical weapons. As summarized in the 2015 vision paper:

In order to prevent the re-emergence of chemical weapons, an effective industry verification regime will have to be sustained. This needs to be supported by the augmented data monitoring and transfer controls provided for in the Convention. In addition, full and effective national implementation of the Convention is vitally important for preventing the re-emergence of CWs, as is the continued problem resolution and deterrent value of the provisions for consultation, cooperation, and fact-finding, including the capability to conduct non-routine verification activities such as challenge inspections and investigations of potential use at any point in time.⁶⁰

Clearly, the notion of preventing the re-emergence of CW is linked to continued implementation of several regime norms and draws on monitoring of and access to relevant S&T developments. It should therefore not be conflated with the traditional concept of nonproliferation. The latter has emerged in the context of the nuclear nonproliferation regime, which for a long time has been criticized by some for its discriminatory differentiation of states into “nuclear haves” and “nuclear have-nots.” Clearly, such negative connotations are neither intended in the context of preventing the re-emergence of CW, nor would they be applicable given the complete prohibition of CW for all CWC states parties.

Preventing the re-emergence of chemical weapons also incorporates two central elements of the OPCW’s international cooperation and assistance agenda: chemical safety and security; and national implementation measures. With respect to the latter, the 2015 vision paper noted that “full and effective national implementation of the Convention is vitally important for preventing the re-emergence of chemical weapons.”⁶¹ Unfortunately, in 2018 “only 122 States Parties [out of 193] have fully enacted legislation and/or adopted administrative measures to fully meet these obligations under the Convention.” In this context, the Fourth Review Conference “highlighted the need for a comprehensive approach to national implementation in line with each State Party’s constitutional requirements.”⁶² It also “[r]equested the Secretariat and States Parties to continue to further explore and implement innovative means of assistance to improve the national implementation of the Convention, taking into consideration national and regional priorities.”⁶³ Given the reduced demand for verification resources after 2023, CWC states parties should consider increasing the OPCW’s support for national implementation measures in those states that have yet to fully implement the convention. This would appear especially timely in light of the September 2022 OPCW report on Article VII implementation, which again states that 122 (out of 193) CWC states parties have implemented all the initial measures under the convention.⁶⁴

Enhancing chemical safety and security measures, on the other hand, represents an important tool for strengthening the assistance and protection norms contained in the treaty. With more than one-third of CWC states parties not yet fully implementing the treaty domestically, support for enhanced chemical-security measures in laboratories, in industry, and during transport of chemicals and at borders would significantly contribute to the core goal of the CWC—namely, to prevent toxic chemicals from being used to cause harm. According to the 2021 OPCW program and budget, the Technical Secretariat already undertakes several activities in this area.⁶⁵ After 2023, these should be better systematized, more firmly embedded into the overarching concept of preventing the re-emergence of CW, and better resourced.

As these few examples demonstrate, the end of CW destruction will not lead to a wholesale change in CWC implementation. Rather, it provides an opportunity for the adaptation of norm implementation and corresponding activities to ensure their continued effectiveness. States parties would ideally achieve a political consensus, including at the Fifth Review Conference, to give the Technical Secretariat the strongest possible backing for performing its functions in support of the regime’s normative guideposts.

Sustaining the attribution norm and facilitating accountability through other institutions

As the above discussion of reactions by CWC states parties and the OPCW to the confirmed use of CW in the Syrian conflict has shown, the new attribution norm was not immediately added to the existing set of norms of the CW-prohibition regime. Rather, its integration into the normative fabric of the regime occurred only after Russia prevented attempts in the UN Security Council to hold the perpetrators of CW use accountable. Hence, more than five years passed between the first reports of CW use in Syria and the Fourth Special Session of the CSP in June 2018. From a historical-institutionalist perspective, this conference and the decision to give the OPCW Technical Secretariat the authority to identify the perpetrators of CW use in Syria mark a critical juncture during which the majority of CWC states parties decided to establish the new attribution norm within the CW-prohibition regime. However, this does not equate to a mechanism to hold the perpetrators of CW attacks accountable, a distinction that is important because it points to what the OPCW is and is not permitted to do under its new mandate. As summarized in the first IIT report in April 2020, the IIT “is not a judicial body with the authority to assign individual criminal responsibility, nor does the IIT have the authority to make final findings of non-compliance with the Convention.”⁶⁶ This reflects the broader recognition that “arms control and nonproliferation arrangements like the CWC provide only limited tools for sanctioning or penalizing the guilty party.”⁶⁷ Along the same lines, the IIT coordinator, Santiago Onate, noted that “legal findings on responsibility of States or non-state actors, or […] recommendations for future action […] are all issues that appertain to the Executive Council and to the Conference of States Parties of the OPCW, and other bodies, as appropriate.”⁶⁸

Given the continued polarization among CWC states parties over the issue of CW use, the measures taken by the CSP against Syria in April 2021—that is, stripping it of some of its rights and privileges—represent the limit of the OPCW’s options, short of asking the UN Security Council to take action. Yet, in both institutional contexts—the UN Security Council and the OPCW—Russia has acted as spoiler with respect to establishing an attribution norm for CW use and holding those responsible to account.

The use of the Novichok nerve agents against individuals for assassination purposes also points to the various uses of chemical weapons. When states negotiated the bulk of the CWC during the 1980s, it was primarily regarded as a treaty among states with the goal of restraining interstate armed conflict through the prohibition of CW use. Clearly, as the use of highly toxic nerve agents for assassination purposes has shown, the contexts in which toxic chemicals are seen as useful weapons have evolved. If toxic chemicals are repeatedly assigned sufficient utility as a weapon for political assassination purposes, this might in the end undermine the norm against CW use and the CW-prohibition regime more broadly. With a view to potential terrorist CW use, CWC states parties acted swiftly after the unconventional attacks on the World Trade Center on September 11, 2001, and the mailing of anthrax spores through the US postal system by creating an Open-Ended Working Group on Terrorism at a December 2001 meeting of the Executive Council.⁶⁹ OPCW activities in this area set a precedent enabling the organization to address issues that some might argue are peripheral to the CWC’s original objective. Instead of trying to play catch-up with newly discovered toxic chemicals that are used as weapons, CWC States Parties should reaffirm and clarify the General Purpose Criterion (GPC) as going beyond interstate use of toxic chemicals as weapons.⁷⁰ In practical terms, states should discuss such a reaffirmation and clarification during the run-up to the 2023 CWC Review Conference and either insert it into the political declaration of the review conference or issue the clarification as a stand-alone document.⁷¹

Building on such a clarification and reaffirmation of the GPC, CWC states parties at RC-5 should decide to sustain the newly established attribution norm in the broader regime context and to facilitate accountability through other institutions. CWC states parties can meet the first challenge by continuing to support the OPCW politically and financially so that it can fulfill the multitude of tasks assigned to it by its member states. As Kenneth D. Ward has noted, “[T]he Russian chemical weapons problem is fundamentally rooted in Moscow’s broader confrontation with the West, and it should be expected that any progress would ultimately be dependent on the broader political landscape.”⁷² As this landscape has been deteriorating fast with the Russian invasion of Ukraine, a general acceptance of the attribution norm, including by Russia and Syria, currently appears remote. However, as discussed above, many of the regime norms remain relevant, regardless of whether their implementation needs to be adjusted. Verification activities, capacity development and international cooperation projects, chemical safety and security, and the monitoring of S&T remain essential for preventing the re-emergence of CW and require adequate funding. States parties should use the structured process of the OEWG to prepare the Fifth CWC Review Conference in May 2023 to lay the groundwork for the incorporation of the IIT’s work into the regular program of the Technical Secretariat from 2024 onward.

CWC states parties provided the basis for this during the special conference in June 2018, when they also decided that “the Director-General, if requested by a State Party investigating a possible chemical weapons use on its territory, can provide technical expertise to identify those who were perpetrators, organisers, sponsors or otherwise involved in the use of chemicals as weapons.”⁷³ Thus, this decision does not restrict the OPCW’s attribution work to cases of CW use in Syria. Hence, for the OPCW to be prepared for future requests of this nature, its member states should task the Technical Secretariat with integrating the IIT’s investigation and attribution capabilities into the organization’s regular verification work. As consensus decisions on this appear unlikely given the opposition by Syria, Russia, and a small number of other CWC states parties, resorting to the voting procedures of the OPCW cannot be excluded.

The seeds for facilitating accountability through other institutions have been planted with the 2018 decision to establish the IIT. This decision enables the Technical Secretariat to

preserve and provide information to the investigation mechanism established by the United Nations General Assembly in resolution 71/248 (2016) [the International, Impartial and Independent Mechanism, or IIIM], as well as to any relevant investigatory entities established under the auspices of the United Nations.⁷⁴

To this end, the OPCW has concluded a memorandum of understanding with the IIIM. While the IIIM would be able to support the International Criminal Court (ICC) or an international tribunal in its proceedings, the political and legal prerequisites to punish CW use as a crime at the international level are currently lacking.⁷⁵ Although the statute of the ICC prohibits states from using chemical weapons, Syria is not a contracting state. In order to bring CW use in Syria before the ICC, the UN Security Council would first have to give the court a mandate. However, Russia and China have so far blocked this path by exercising their veto. In view of the conflict between Russia and the West, it also appears unlikely that the Security Council will be able to set up an ad hoc tribunal in the foreseeable future. As a result, national courts in OPCW member states that apply the principle of universal jurisdiction are currently the only option to hold the perpetrators of CW use in Syria accountable.⁷⁶ This highlights the boundaries of disarmament law, as exemplified in the mandate of the OPCW and its IIT. While the OPCW can facilitate holding those responsible for CW use to account by identifying the perpetrators in a manner that will hold up in a court of law, it requires institutions implementing international or national criminal law to complement the OPCW’s work under the newly established attribution norm.

The challenges involved in continuing to oversee and enforce the full implementation of the CWC, and to hold accountable any countries that violate the CWC, have recently become more pronounced because of the Russian invasion of Ukraine and its accompanying disinformation campaign. As part of its false narrative, Russia has not only accused Ukraine of developing chemical and biological weapons and planning to use them, but also requested a meeting of the UN Security Council to spread these allegations. This, in turn, has raised concerns among NATO and other Western states that Russia may be seeking to provide cover for CW attacks it may be planning itself.⁷⁷ As Milton Leitenberg has noted, “[F]alse allegations undermine the authority and legitimacy of international treaties […] whose purpose is to prevent the proliferation of weapons of mass destruction.”⁷⁸ Leveling unfounded allegations against CWC states parties in good standing, such as Ukraine, without using the clarification procedures foreseen in the CWC for such cases further complicates implementation of the attribution norm. However, as the OPCW’s work in dismantling the Syrian CW program and its investigations of several cases of CW use in that country have demonstrated, such activities are possible even in the face of an ongoing conflict.

Conclusions

This article set out to analyze the transition of the OPCW over the past 25 years from an organization devoting most of its resources to verifying the destruction of declared CW stockpiles to one in which the attribution of CW use has seen increasing salience over the past few years. This transition occurred against the backdrop of steadily declining CW stockpiles in possessor states, with the United States scheduled to complete destruction of its CW in September 2023. The particular direction of this transition, however, was set in motion by the repeated use of CW in Syria and elsewhere. These violations of the nonuse norm and responses to them by CWC states parties can be usefully characterized as a critical juncture of the CW prohibition regime. Accelerated by the assassination attempts on Sergei Skripal and Alexei Navalny, CWC states parties moved implementation of the emerging attribution norm for CW use from the UN Security Council, where Russian vetoes blocked its continued implementation, to the OPCW, which established the IIT in order to identify the perpetrators behind CW attacks in Syria.

The accompanying polarization among CWC states parties has left the OPCW with two main tasks as the Fifth CWC Review Conference approaches: First, the states parties should agree on future priorities for the OPCW and adapt implementation of existing regime norms accordingly. Second, they should firmly integrate the new attribution norm into the regular verification work of the organization. A failure on the part of CWC states parties to accomplish these two tasks would cast doubts on their willingness to ensure the OPCW’s future relevance and to sustain its response to violations of one of the CWC’s most central provisions. The extent to which CWC states parties can agree on adaptations of norm implementation following the end of CW destruction and are willing to push for fully embedding the IIT’s mandate into the regular programmatic activities of the OPCW will remain central factors by which to judge the outcome of the Fifth CWC Review Conference.

Acknowledgments

The author would like to thank the anonymous reviewers for their helpful comments and suggestions. Work on this article was made possible by research grant FP 08/20-SP03/05-2020 from the German Foundation for Peace Research.

Additional information

Notes on contributors

Alexander Kelle

Alexander Kelle is a senior researcher at the Berlin office of the Institute for Peace Research and Security Policy at the University of Hamburg, where he leads a project funded by the German Ministry for Education and Research on strengthening the norms against chemical and biological weapons. Previously, he was a senior policy officer in the Office of Strategy and Policy of the OPCW from 2013 to 2019. The funders of his research include the European Union, the British Academy, the MacArthur Foundation, NATO, and the German Foundation for Peace Research. He has been published in numerous outlets, such as Contemporary Security Policy, International Affairs, Science and Engineering Ethics, Medicine, Conflict and Survival, and the Bulletin of the Atomic Scientists. He is the author of Prohibiting Chemical and Biological Weapons: Multilateral Regimes and Their Evolution (2014).

Notes

1 Chemical Weapons Convention, January 13, 1993, Article I. The treaty text is available at <https://www.opcw.org/chemical-weapons-convention>.

2 The term “norm” is used to refer to “standards of behavior defined in terms of rights and obligations”; see Stephen D. Krasner, “Structural causes and regime consequences: regimes as intervening variables,” International Organization, Vol. 36, No. 2 (1982), p. 186.

3 See, for example, James J. Wirtz, “Nuclear disarmament and the end of the chemical weapons ‘system of restraint,’” International Affairs, Vol. 95, No. 4 (2019), pp. 785–99.

4 Another example of such underestimation can be found in the debate about the demise of NATO following the end of the Cold War. Despite the expectation of some that NATO might go out of business, the organization has not only survived, but grown in membership and continues to play a key role in European and transatlantic security relations 30 years later.

5 The adoption of such a perspective in this article is not meant to be a formal test of a theory or a comparison to competing approaches. For an overview, see Orfeo Fioretos, Tulia G. Falleti, and Adam Sheingate, eds. The Oxford Handbook of Historical Institutionalism (Oxford: Oxford University Press, 2016); and Thomas Rixen, Lora Anne Viola, and Michael Zürn, eds., Historical Institutionalism and International Relations: Explaining Institutional Development in World Politics (Oxford: Oxford University Press, 2016).

6 Orfeo Fioretos, “Historical Institutionalism in International Relations,” International Organization, Vol. 65, No. 1 (2011), p. 369.

7 For OPCW annual reports, see OPCW, “Reports of the OPCW on the Implementation of the Chemical Weapons Convention: Annual Reports,” <https://www.opcw.org/resources/documents/annual-reports>. The most consistent and prominent example of monitoring and reporting by a nongovernmental organization in this area is the CBW chapters in the annual SIPRI Yearbook. Most of these are freely available online at <https://sipri.org/yearbook/archive>.

8 A comprehensive discussion of these normative guideposts is beyond the scope of this article.

9 Giovanni Cappoccia and R. Daniel Kelemen, “The Study of Critical Junctures. Theory, Narrative and Counterfactuals in Historical Institutionalism,” World Politics, Vol. 59, No. 3 (April 2007), pp. 341–­69, here p. 344.

10 Arms Control Association, “The Final Push for U.S. Chemical Weapons Demilitarization,” March 14, 2022, <https://www.armscontrol.org/issue-briefs/2022-03/final-push-us-chemical-weapons-demilitarization>.

11 “Fully implemented” in this context refers to the verified destruction of declared chemical warfare agents. It is not an assessment of the completeness or accuracy of declarations by possessor states, such as Russia and Syria, about which serious doubts remain.

12 The date for the Review Conference was agreed by the OPCW Conference of the States Parties at its 26th session in November 2021. See OPCW, “Report of the Twenty-Sixth Session of the Conference of the States Parties,” C-26/5, December 2, 2021, <https://www.opcw.org/sites/default/files/documents/2021/12/c2605%28e%29.pdf>. Debates about the future priorities of the OPCW in a post-CW-destruction world could build on previous analyses and reports such as the one issued by the Advisory Panel on Future OPCW Priorities (chaired by Rolf Ekéus) in 2011 or the paper produced by the OPCW Technical Secretariat on “The OPCW in 2025.” The latter conceptualizes the prevention of the re-emergence of chemical weapons as a guiding principle for the future work of the organization. See OPCW, “Report of the Advisory Panel on the future priorities of the Organisation for the Prohibition of Chemical Weapons,” S/951/2011, July 25, 2011, <https://www.opcw.org/sites/default/files/documents/PDF/Advisory_Group_report_s-951-2011_e_.pdf>; OPCW, “The OPCW in 2025: Ensuring A World Free of Chemical Weapons,” S/1252/2015, March 6, 2015, <https://www.opcw.org/sites/default/files/documents/S_series/2015/en/s-1252-2015_e_.pdf>.

13 This focusing leaves other important areas of CWC implementation, such as capacity development and S&T monitoring, unaddressed. However, it is beyond the scope of this article to provide a sufficiently detailed account of all areas of CWC implementation over a 25-year period.

14 In addition, the article draws on analysis of public meetings of the OPCW Conference of the States Parties. Video recordings of most CSP sessions since 2013 are available on the OPCW’s YouTube channel at <https://www.youtube.com/user/opcwonline>.

15 CWC Article VI regulates the permitted uses of toxic chemicals.

16 These activities are covered in CWC Articles IV and V, and Parts IV and V of the CWC Verification Annex. See Ralf Trapp and Paul Walker, “Article IV: Chemical Weapons,” in Walter Krutzsch, Eric P. J. Myjer, and Ralf Trapp, eds., The Chemical Weapons Convention: A Commentary (Oxford: Oxford University Press, 2014), pp. 119–50; Ralf Trapp, “Article V: Chemical Weapons Production Facilities,” in Krutzsch, Myjer, and Trapp, The Chemical Weapons Convention, pp. 151–72.

17 The following states have declared chemical weapons to the OPCW: Albania, India, Iraq, Libya, Syria, Russia, South Korea, and the United States.

18 James Mahoney and Kathleen Thelen define the conversion of norms as one of four modes of gradual institutional change. Accordingly, norm conversion refers to the different uses of a norm in the institutional context. See James Mahoney and Kathleen Thelen, “A Theory of Gradual Institutional Change,” in Mahoney and Thelen, eds., Explaining Institutional Change: Ambiguity, Agency and Change (Cambridge: Cambridge University Press 2010), pp. 1–37.

19 Alexander Kelle, Prohibiting Chemical and Biological Weapons: Multilateral Regimes and Their Evolution (Boulder, CO: Lynne Rienner, 2014), pp. 117–23.

20 In the Russian case, this refers to the first phase of the destruction process, which has resulted in large amounts of highly toxic waste, which, in turn, have to be disposed of. See Alicia Sanders-Zakre, “Russia Destroys Last Chemical Weapons,” Arms Control Today, November 2017, <https://www.armscontrol.org/act/2017-11/news/russia-destroys-last-chemical-weapons>; Global Security, “Russian CW Destruction Techniques,” <https://www.globalsecurity.org/wmd/world/russia/cw-1.htm>.

21 These provisions are contained in CWC Article VI and Parts VI-IX of the Verification Annex. See Mirko Sossai, “Article VI: Activities not Prohibited under the Convention,” in Krutzsch, Myjer, and Trapp, The Chemical Weapons Convention, pp. 173­–94.

22 Ralf Trapp, “Annex on Chemicals,” in Krutzsch, Myjer, and Trapp, The Chemical Weapons Convention, pp. 431–44.

23 OPCW, “Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction in 2015,” C-21/4, November 30, 2016, p. 8, <https://www.opcw.org/sites/default/files/documents/CSP/C-21/en/c2104_e_.pdf>; OPCW, “Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction in 2019,” C-25/4, April 20, 2021, <https://www.opcw.org/sites/default/files/documents/2021/04/c2504%28e%29.pdf>.

24 These provisions are contained in Articles IX and X and Parts X and XI of the convention’s Annex on Implementation and Verification.

25 UN Security Council Resolution 2235, S/Res/2235, August 7, 2015, <https://undocs.org/S/RES/2235(2015)>.

26 Alexander Kelle, “The International Regime Prohibiting Chemical Weapons and Its Evolution,” in Nik Hynek, Ondrej Ditrych, and Vit Stritecky, eds., Regulating Global Security: Insights from Conventional and Unconventional Regimes (Cham, Switzerland: Palgrave Macmillan, 2019), pp. 115–41.

27 Kenneth D. Ward, “Syria, Russia, and the Global Chemical Weapons Crisis,” Arms Control Today, September 2021, <https://www.armscontrol.org/act/2021-09/features/syria-russia-global-chemical-weapons-crisis>.

28 Skripal is a former Soviet/Russian spy now residing in the United Kingdom. He and his daughter were assassinated with a type of Novichok nerve agent originally developed by the former Soviet Union.

29 OPCW, “Decision: Addressing the Threat from Chemical Weapons Use,” C-SS-4/DEC.3, June 27, 2018, <https://www.opcw.org/sites/default/files/documents/CSP/C-SS-4/en/css4dec3_e_.doc.pdf>; Mirko Sossai, “Identifying the Perpetrators of Chemical Attacks in Syria: The Organisation for the Prohibition of Chemical Weapons as Part of the Fight Against Impunity?,” International Journal of Criminal Justice, Vol. 17, No. 2 (2019), pp. 211–27, <https://doi.org/10.1093/jicj/mqz013>.

30 OPCW, “First Report by the OPCW Investigation and Identification Team (IIT) Pursuant to Paragraph 10 of Decision C-SS-4/Dec.3, ‘Addressing the Threat From Chemical Weapons Use’ Ltamenah (Syrian Arab Republic) 24, 25, and 30 March 2017,” S/1867/2020, April 8, 2020, <https://www.opcw.org/sites/default/files/documents/2020/04/s-1867-2020%28e%29.pdf>.

31 OPCW, “Note by the Technical Secretariat: Second Report by the OPCW Investigation and Identification Team Pursuant to Paragraph 10 of Decision C-SS-4/DEC.3, ‘Addressing the Threat from Chemical Weapons Use’ Saraqib (Syrian Arab Republic)—4 February 2018,” S/1943/2021, April 12, 2021, p. 2, <https://www.opcw.org/sites/default/files/documents/2021/04/s-1943-2021%28e%29.pdf>.

32 OPCW, “Decision: Addressing the Possession and Use of Chemical Weapons by the Syrian Arab Republic,” EC-94/DEC.2*, July 9, 2020, <https://www.opcw.org/sites/default/files/documents/2020/07/ec94dec02%28e%29%20%282%29.pdf>.

33 OPCW, “Decision: Addressing the Possession and Use of Chemical Weapons by the Syrian Arab Republic,” No. C-25/DEC.9, April 21, 2021, <https://www.opcw.org/sites/default/files/documents/2021/04/c25dec09%28e%29.pdf>. A further incident of CW use occurred at Kuala Lumpur International Airport in early 2017. In that incident, Kim Jong Nam, the half-brother of North Korean leader Kim Jong Un, was attacked with the nerve agent VX. However, this case was largely handled as a domestic criminal matter and resulted in limited OPCW involvement. See Cindy Vestergaard, “Chemical Assassination: The Role of International Organizations,” Stimson Center, March 2, 2017, <https://www.stimson.org/2017/chemical-assassination-role-international-organizations/>.

34 OPCW, “Report by the Director-General: Progress in the Elimination of the Syrian Chemical Weapons Programme,” EC-102/DG.3, December 23, 2022, <https://www.opcw.org/sites/default/files/documents/2022/12/ec102dg03%28e%29.pdf.

35 Caitríona McLeish, “The Skripal case: Assassination attempt in the United Kingdom using a toxic chemical,” SIPRI Yearbook 2019: Armaments, Disarmament and International Security, pp. 408–17, <https://www.sipri.org/sites/default/files/SIPRIYB19c08sII.pdf>.

36 The OPCW's designated laboratories are a group of high-end chemistry laboratories in different parts of the world that have to prove their capabilities in regular tests conducted by the OPCW. They perform “analysis of chemical samples collected by OPCW inspectors from chemical production facilities, storage depots and other installations, or from the site of an alleged use of chemical weapons.” OPCW, “Designated Laboratories, n.d., <https://www.opcw.org/designated-laboratories>; OPCW, “Summary of the Report on Activities Carried out in Support of a Request for Technical Assistance by the United Kingdom of Great Britain and Northern Ireland (Technical Assistance Visit TAV/02/18),” S/1612/2018, April 12, 2018, <https://www.opcw.org/sites/default/files/documents/S_series/2018/en/s-1612-2018_e___1_.pdf>; “Summary of the Report on Activities Carried out in Support of a Request for Technical Assistance by the United Kingdom of Great Britain and Northern Ireland (Technical Assistance Visit TAV/03/18 and TAV/03B/18 ‘Amesbury Incident’),” S/1671/2018, September 4, 2018, <www.opcw.org/sites/default/files/documents/2018/09/s-1671-2018%28e%29.pdf>.

37 Stefano Costanzi and Gregory D. Koblentz, “Controlling Novichoks after Salisbury: revising the Chemical Weapons Convention schedules,” Nonproliferation Review, Vol. 26, No. 5-6 (2019); pp. 599–612, <https://doi.org/10.1080/10736700.2019.1662618>.

38 Stefano Costanzi and Gregory D. Koblentz, “Updating the CWC: How We Got Here and What Is Next,” Arms Control Today, April 2020, <https://www.armscontrol.org/act/2020-04/features/updating-cwc-we-got-here-what-next>.

39 OPCW, “Note by the Technical Secretariat: Summary of the Report on Activities Carried Out In Support of a Request for Technical Assistance by Germany (Technical Assistance Visit - TAV/01/20),” S/1906/2020, October 6, 2020, <https://www.opcw.org/sites/default/files/documents/2020/10/s-1906-2020%28e%29.pdf>.

40 Ward, “Syria, Russia, and the Global Chemical Weapons Crisis.”

41 OPCW, “Correspondence Between OPCW and Permanent Representation of the Russian Federation to the OPCW, from 1/10/2020 to 21/12/2020, in Relation to a Request for a Technical Assistance Visit to the Russian Federation Under Subpar. 38(e), Article VIII of the CWC,” December 21, 2020, <https://www.opcw.org/sites/default/files/documents/2020/12/Correspondence%20ODG_RF%20re%20TAV.pdf>.

42 The procedure contained in CWC Article IX.2 represents the lowest-level clarification request under the convention. In principle, this could be escalated all the way to a challenge inspection request under a different part of Article IX, but no CWC state party has up to now pursued a challenge inspection. OPCW, “United Kingdom of Great Britain and Northern Ireland: Request for Circulation of a Document at the Ninety-Eighth Session of the Executive Council,” EC-98/NAT.7, October 5, 2021, <https://www.opcw.org/sites/default/files/documents/2021/10/ec98nat07%28e%29.pdf>.

43 OPCW, “Russian Federation: Request for Circulation of a Document at the Ninety-Eighth Session of the Executive Council,” EC-98/NAT.8, October 7, 2021, <https://www.opcw.org/sites/default/files/documents/2021/10/ec98nat08%28e%29.pdf>; Oliver Meier and Alexander Kelle, “The Navalny poisoning: Moscow evades accountability and mocks the Chemical Weapons Convention,” Bulletin of the Atomic Scientists, October 19, 2021, <https://thebulletin.org/2021/10/the-navalny-poisoning-moscow-evades-accountability-and-mocks-the-chemical-weapons-convention/>.

44 Bulgaria, Joint Statement on behalf of 55 States Parties delivered by H.E. Ambassador Krassimir Kostov, Permanent Representative of Bulgaria to the OPCW at the Twenty-Sixth Session of the Conference of the States Parties under Agenda Item 9(d), November 29, 2021, <https://www.opcw.org/sites/default/files/documents/2021/11/BG%20on%20behalf%20of%2055%20on%20Navalny%20CSP-26%20Item%209d.pdf>.

45 Alexander Kelle, “Adding Novichok Nerve Agents to the CWC Annex on Chemicals: a technical fix and its implications for the chemical weapons prohibition regime,” UNIDIR, Geneva, 2022, <https://doi.org/10.37559/WMD/22/WMDCE/01>; Stefano Costanzi and Gregory D. Koblentz, “Strengthening controls on Novichoks: a family-based approach to covering A-series agents and precursors under the chemical-weapons nonproliferation regime,” Nonproliferation Review, Vol. 28, Nos. 1–3 (2022), <https://www.tandfonline.com/doi/full/10.1080/10736700.2021.2020010>.

46 See UN News, “Russia responsible for Navalny poisoning, rights experts say,” March 1, 2021, <https://news.un.org/en/story/2021/03/1086012>.

47 Nicole Deitelhoff and Lisbeth Zimmermann, “Norms under Challenge: Unpacking the Dynamics of Norm Robustness,” Journal of Global Security Studies, Vol. 4, No. 1 (2019), pp. 2–17, <https://doi.org/10.1093/jogss/ogy041>.

48 For more details, see <https://www.noimpunitychemicalweapons.org/-en-.html>.

49 Rebecca Hersman, “Resisting Impunity for Chemical-Weapons Attacks,” Survival, Vol. 60, No. 2 (2018), pp. 86–7.

50 OPCW, “Report of the Advisory Panel”; OPCW, “The OPCW in 2025.”

51 Alexander Kelle, “The Third Review Conference of the Chemical Weapons Convention and beyond: key themes and the prospects of incremental change,” International Affairs, Vol. 89, No. 1 (2013), pp. 143–58, <https://doi.org/10.1111/1468-2346.12009>.

52 OPCW, Report of the Ninety-Ninth Session of the Executive Council, EC-99/2, March 10, 2022, <https://www.opcw.org/sites/default/files/documents/2022/03/ec9902%28e%29.pdf>.

53 See Alexander Ghionis, Alexander Kelle and María Garzón Maceda, “Preparing for Success at the Fifth Chemical Weapons Convention Review Conference: A Guide to the Issues,” UNIDIR, 2023. <https://doi.org/10.37559/WMD/23/CWC/01>.

54 See Paul F. Walker, “Three Decades of Chemical Weapons Elimination: More Challenges Ahead,” Arms Control Today, December 2019, <https://www.armscontrol.org/act/2019-12/features/three-decades-chemical-weapons-elimination-more-challenges-ahead>.

55 OPCW, Note by the Director General: Report of the Advisory Panel on Future Priorities of the Organisation for the Prohibition of Chemical Weapons, S/951/2011, July 25, 2011, p. 10, <https://www.opcw.org/sites/default/files/documents/PDF/Advisory_Group_report_s-951-2011_e_.pdf>.

56 OPCW, “The OPCW in 2025.”

57 OPCW, Chairperson's Report of the Proceedings of the Fourth Special Session of the Conference of the States Parties to Review the Operation of the Chemical Weapons (Fourth Review Conference), RC-4/3/Rev.1, November 30, 2018 (hereafter cited as “Chairperson‘s report of the 4th CWC Review Conference”), pp. 14–15, <https://www.opcw.org/sites/default/files/documents/2018/12/rc403r1%28e%29.pdf>.

58 OPCW, Report of the OPCW on the Implementation of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction in 2019, C-25/4, April 20, 2021, p. 21, <https://www.opcw.org/sites/default/files/documents/2021/04/c2504%28e%29.pdf>.

59 OPCW, Decision: Programme and Budget of the OPCW for 2021, C-25/Dec.7, December 1, 2020, p. 5, <https://www.opcw.org/sites/default/files/documents/2020/12/c25dec07%28e%29.pdf>.

60 OPCW, “The OPCW in 2025,” p. 4.

61 OPCW, “The OPCW in 2025,” p. 4.

62 OPCW, Chairperson’s report of the 4th CWC Review Conference, p. 18.

63 OPCW, Chairperson’s report of the 4th CWC Review Conference, p. 19.

64 See OPCW, “Report by the Director-General: Overview of the Status of Implementation of Article VII of the Chemical Weapons Convention as at 31 July 2022,” EC-101/DG.13* C-27/DG.9*, September 9, 2022, p.2 <https://www.opcw.org/sites/default/files/documents/2022/09/ec101dg13%20c27dg09%2B%28e%29%20%281%29.pdf>.

65 OPCW, Programme and Budget of the OPCW for 2021, pp. 82–3.

66 OPCW, First Report by the OPCW Investigation and Identification Team, p. 1.

67 “The Future of the Global Norm Against Chemical Weapons: An Interview With Susanne Baumann, German Commissioner for Disarmament and Arms Control,” Arms Control Today, July/August 2021, <https://www.armscontrol.org/act/2021-07/interviews/future-global-norm-against-chemical-weapons-interview-susanne-baumann-german>.

68 OPCW, “IIT Coordinator’s Remarks on the First Report by the OPCW Investigation and Identification Team,” April 8, 2020, p. 1, <https://www.opcw.org/sites/default/files/documents/2020/04/IIT%20Coordinator%27s%20Remarks%20on%20the%20First%20Report%20by%20the%20IIT%208%20April%202020.pdf>.

69 OPCW, “Note by the Director-General: Status of the OPCW’s Contribution to Global Anti-Terrorism Efforts,” EC-90/DG.8, February 12, 2019, <www.opcw.org/sites/default/files/documents/2019/02/ec90dg08%28e%29.pdf>.

70 The General Purpose Criterion is contained in Article II 1. (a) of the Chemical Weapons Convention. This defines as chemical weapons “[t]oxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes.” In other words, all toxic chemicals that are used with the intention to kill or harm humans or animals are prohibited by the CWC, not just those that may appear on a list, such as the CWC’s Schedule of Chemicals.

71 The recent clarification of the permissibility of using certain aerosolized chemicals that act on the central nervous system in a law enforcement context could serve as a precedent for such a clarification of the General Purpose Criterion. See OPCW, “Decision: Understanding Regarding the Aerosolised Use of Central Nervous System-Acting Chemicals for Law Enforcement Purposes,” C-26/DEC.10, December 1, 2021, <https://www.opcw.org/sites/default/files/documents/2021/12/c26dec10%28e%29.pdf>.

72 Ward, “Syria, Russia, and the Global Chemical Weapons Crisis.”

73 OPCW, “Decision: Addressing the Threat from Chemical Weapons Use,” p. 4.

74 OPCW, “Decision: Addressing the Threat from Chemical Weapons Use,” p. 3.

75 These prerequisites would entail either a generic mandate for the ICC to prosecute or an authorization by the UNSC to do so in specific cases. Yasmin Naqvi, “Crossing the red line: The use of chemical weapons in Syria and what should happen now,” International Review of the Red Cross, Vol. 99, No. 3 (2017), pp. 959–93, <https://international-review.icrc.org/sites/default/files/906_7.pdf>.

76 On the first such criminal complaints, see Open Society Justice Initiative, “First Criminal Complaint against Syrian Government Officials for Chemical Weapons Attacks,” October 5, 2020, <https://www.justiceinitiative.org/litigation/german-criminal-investigation-into-chemical-weapons-attacks-in-syria>; Syrian Archive, “Filling [sic] of criminal complaint in France regarding the chemical attacks in Syria,” March 2, 2021, <https://syrianarchive.org/en/investigations/Frenchcriminalinvestigation>.

77 Humeyra Pamuk, “U.N. Security Council to convene on Friday at Russia's request,” Reuters, March 11, 2022, <https://www.reuters.com/world/europe/un-security-council-convene-friday-russias-request-diplomats-2022-03-11/>.

78 Milton Leitenberg, “Russian nuclear and biological disinformation undermines treaties on weapons of mass destruction,” Bulletin of the Atomic Scientists, March 10, 2022, <https://thebulletin.org/2022/03/russian-nuclear-and-biological-disinformation-undermines-treaties-on-weapons-of-mass-destruction/>.