Chemical Weapons Use in Ukraine Tests Global Norms to Breaking Point

At Ukraine’s request, on 18 November 2024, the Organisation for the Prohibition of Chemical Weapons (OPCW) made public the report of its visit to Ukraine, highlighting that a grenade and soil samples collected from along the confrontation lines in Dnipropetrovsk had tested positive for 2-chlorobenzylidene malononitrile, a riot control agent (RCA) commonly known as CS gas. The OPCW’s director-general Fernando Arias expressed ‘grave concern’ over the findings. Use of toxic chemicals, including riot control agents, as a method of warfare is clearly prohibited by the Chemical Weapons Convention (CWC) under Article I, where states parties undertake ‘never under any circumstances’ to use chemical weapons (CWs).

During its visit, the OPCW team received documentation and evidence from Ukrainian authorities, including the grenade and further environmental samples for subsequent analysis.

The OPCW’s report neither decides if CS was used as a CW, nor identifies any potential perpetrators. As such, this leaves others to draw their own conclusions. While many observers lay the blame firmly at the door of Russia, for the broader international community, more evidence is needed before any further action can be considered.

What Next?

The CWC clearly states that states parties shall review compliance with the convention (Article VIII, paragraph 20), however, the geopolitical backdrop which dwarfs the small stage of the OPCW makes it unlikely that this report on its own will be able to galvanise the widespread support of states parties to seek redress through the CWC. 

That said, the CWC puts at Ukraine’s disposal several routes of remedy, the most obvious being to invoke Article IX (Consultations, Cooperation and Fact-Finding), where Ukraine (or another state party) could formally request that Russia respond (within 10 days) with information which is ‘sufficient to answer the doubt or concern raised’. Given that the international community is still waiting for a credible response from Russia on the poisoning of Alexei Navalny using this same mechanism, the expectations of states parties could not be much lower. However, it is important for the legal framework of the CWC to be used to seek recourse and to put Russia’s attitude to the CWC in the spotlight, even if certain states parties choose to avert their gaze. 

To those who haven’t spent their years immersed in the technicalities of the CWC, there is a perception that Article IX only provides for a challenge inspection on the territory of a non-compliant state party, but the language of the CWC allows a state party to request an on-site challenge inspection in any facility or location in the territory of any state party. The language indicates that a state party cannot call for a challenge inspection on its own territory, however, there appears to be no reason why another concerned state party cannot call for a challenge inspection on the territory of Ukraine.

The CWC is clear about a challenge inspection being conducted on-site, but this would present the OPCW with significant political, security and operational challenges: any on-site activities along conflict lines would require political support from both sides and a ceasefire would need to be agreed and adhered to, as well as relevant timelines observed. These challenges all but rule out an OPCW team being able to conduct such an inspection. Coupled with this would be likely attempts by any perpetrator to destroy potential evidence before any inspection team arrived. 

Similarly, Ukraine may request an investigation of alleged use of a chemical weapon (IAU). This would be carried out under the provisions of Part XI of the Verification Annex (VA). Paragraph 15 states that: ‘The inspection team shall have the right of access to any and all areas which could be affected by the alleged use of chemical weapons’, while paragraph 16, states the state party, under the supervision of inspectors, should assist in the collection of samples and cooperate in the collection of appropriate control samples as requested by the inspection team. Taken together, this implies that the inspection team need not actually visit sites relevant to alleged use, providing the team supervises the collection of samples. It is also worth noting that paragraph 30 of part II of the VA permits the use of non-approved equipment, if it would be of help in this regard. It is worth noting that a precedent has already been set where in March 2018, an OPCW inspection team based in The Hague witnessed sample collection at the former CW storage site in Ruwagha, Libya, in real time via satellite feed and satellite phone. While such a pragmatic approach could solve many problems for the OPCW, it could create more trouble than it solves – it is likely that Russia and other states parties would vehemently and vocally oppose such an approach.

Another approach would be to request assistance under Article X. The OPCW mission to Ukraine was a technical assistance visit under Article VIII, paragraph 38(e), but a more formal assistance mechanism under Article X could be used which explicitly states that a state party has the right to request and to receive assistance from the OPCW if it considers that ‘RCAs have been used against it as a method of warfare’. The request triggers dispatch of emergency assistance and is followed immediately by investigation by the OPCW. On receiving the investigation report, states parties (who are members of the Executive Council) take a decision by simple majority vote as to whether the OPCW provides supplementary assistance. The assistance which can be provided is limited to the funds in the Voluntary Fund for Assistance (which currently stands at just under €1.6 million) and bilateral and unilateral offers of assistance made by states parties. What is certain is that the value of the investigation is greater than the assistance on offer, and the report of OPCW’s visit to Ukraine would be very useful for substantiating a request for assistance under Article X.

What Other Options Might be Available to the OPCW?

On paper, a fact-finding mission (FFM) similar to the FFM in place for Syria might be a way forward. The FFM was established by the then director-general Ahmet Üzümcü using his general authority to seek to uphold at all times the object and purpose of the CWC. The FFM route offers distinct advantages over an IAU in that it can consider multiple allegations simultaneously, both historic and as they arise, over an extended period without waiting for specific state party requests in relation to specific allegations. If this were to mirror the formation of the FFM for Syria, it would require the will of the current director-general to establish such a mission. Furthermore, there is nothing to prevent states parties requesting that the OPCW set up an FFM for Ukraine. In both cases, this would require the availability of suitably skilled and trained inspectors. 

Perhaps the route to determining and establishing use can be found in the decision taken by states parties during a special session on ‘addressing the threat from chemical weapons use’, which was the legal basis for establishing the Investigation and Identification Team (IIT). 

Paragraph 20 of the decision allows for the IIT to be used for the investigation and attribution of those responsible for using CW on Ukrainian territory. The decision indicates that a state party, such as Ukraine, that is investigating potential use of CW on its territory can request the director-general to provide technical experts to ‘identify those who were perpetrators, organisers, sponsors or otherwise involved in the use of chemicals as weapons’. An important difference to paragraph 20, despite it being specific to Syria, is the requirement for the FFM to make an initial determination on use. There is no requirement for such a determination in paragraph 20. 

This decision does not require any further decision by the OPCW’s policymaking organs and the decision to provide relevant expertise sits with the director-general. 

The many potential next steps for Ukraine and states parties more widely are a testament to the versatility of the CWC in such cases. As many states parties agreed in Paris on 23 January 2018, ‘the international community as a whole shares a common responsibility to enforce the prohibition of CW use’. And it was clear from national statements at last week’s annual Conference of States Parties that many were keen to reaffirm their ‘condemnation in the strongest possible terms of the use of CW by anyone under any circumstance, emphasizing that all uses of chemical weapons anywhere, at any time, by anyone, under any circumstances are unacceptable’.

Whether there is further action or not, the facts are that samples have been taken that show the presence of RCA in a conflict area, strongly pointing to the use of RCAs as a method of warfare. Can the OPCW maintain its credibility if state parties decide that no follow-up action takes place?

© RUSI, 2024

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