What's In Blue

Posted Thu 5 Mar 2015

Syria Chemical Weapons: Draft Resolution and Consultations

This afternoon (5 March), UN High Representative for Disarmament Affairs Angela Kane will brief Security Council members on the seventeenth monthly report (S/2015/138) on the implementation of resolution 2118, which required the verification and destruction of Syria’s chemical weapons.

However, it is expected that the main focus of today’s consultations will be the draft resolution that was circulated to Council members yesterday by the US following up the findings of the fact-finding mission of the Organisation for the Prohibition of Chemical Weapons (OPCW) on the use of chlorine bombs in Syria. The draft resolution had been negotiated among the P5, specifically Russia and the US, prior to broader circulation to the entire Council membership. At press time, the first round of negotiations of all 15 members was being held with a view to adopt in the coming days. Given the difficulty Russia and the US had in negotiating this draft, a majority of Council members doubt that there will be room to negotiate the text further and expect the resolution to be put to a vote quickly.

Since September 2014, when the initial findings of the OPCW fact-finding mission were made public, the P3, along with several other Council members from both the 2014 and 2015 configuration, have been keen to follow up in the Security Council the issue of the use of chlorine bombs. The OPCW fact-finding mission concluded with “a high degree of confidence that chlorine has been used as a weapon” and that there was evidence that chlorine had been consistently and repeatedly used in barrel bombs dropped from helicopters. While the fact-finding mission does not attribute blame, only the Syrian government has aerial capacity and only rebel-held areas were targeted.

The first step in this follow-up was for Council members that serve in both the UN Security Council and the OPCW Executive Council—in particular the US, but also Chile, France, Malaysia, New Zealand, Nigeria, Spain and the UK—to spearhead an initiative to have the fact-finding mission’s reports transmitted officially to the Security Council. This effort prompted the 4 February decision of the OPCW Executive Council to include reports of the fact-finding mission in the OPCW reports to the Security Council under the terms of resolution 2118, creating a reporting line back to the Security Council that had not previously existed. The OPCW decision furthermore expressed serious concern at the findings that chlorine had been used as a weapon in Syria, condemned the use of chemical weapons (without attributing blame) and called for accountability.

In fact, the 2118 report that Kane will present to Council members later today includes the fact-finding mission’s three reports in annexes. These same reports had also been previously circulated to Council members on 30 December 2014 in a letter from the P3, current Council members Jordan and Lithuania and then-Council members Australia, Luxembourg and the Republic of Korea (S/2014/955).

Shortly after the 4 February OPCW decision, the P5 began negotiating a draft resolution on the issue of chlorine bombs that condemned the use of toxic chemicals such as chlorine, without attributing blame, stressed that those responsible should be held accountable, recalled resolution 2118 and supported the 4 February decision of the OPCW. While acknowledging that the OPCW has concluded that toxic chemicals have been used as a weapon in Syria, the draft does not say that resolution 2118 has been violated but rather uses conditional language that any such use of toxic chemicals would constitute a violation.

Despite this implicit threat in resolution 2118 to impose sanctions in the case of non-compliance, it seems that even the initial draft did not attempt to include language on sanctions, with most members assuming that such action would have been vetoed by Russia. However,it seems that the P3 were keen not to roll back the language in resolution 2118 which threatened to impose measures under Chapter VII ( which were understood to mean measures under Article 41 of Chapter VII, i.e. targeted sanctions) if the provisions of the resolution were violated. It appears that they were successful in getting agreement on this as the draft resolution currently being negotiated decides to impose measures under Chapter VII if there is future non-compliance with resolution 2118.

The main sticking point during P5 negotiations was how to reference Chapter VII in the resolution. It seems that during negotiations, Russia initially argued against the need for a resolution on the issue of chlorine bombs and suggested as an alternative that the Council’s concern could be expressed in a presidential statement. When it became apparent that the P3 were staying focused on the necessity of a resolution, it seems Russia reverted to resisting any explicit reference to Chapter VII, a staunch position that it’s held since the beginning of the Syrian conflict. This position had led to compromises in the negotiation of resolution 2118. While resolution 2118 did not clearly specify that it was under Chapter VII it did include an Article 39 determination.(Chapter VII is usually invoked following an Article 39 determination by the Security Council that there has been a “threat to the peace, breach of the peace, or act of aggression.” An explicit reference to Article 39 or to the nature of the determination is not essential, however, for the Council to use its Chapter VII powers.) Resolution 2118 also, interestingly, had an explicit reference to Article 25 which obligated members to carry out the Council’s decisions. However, the draft being negotiated now does not contain either the Article 39 determination that the use of chemical weapons is a threat to international peace and security or the Article 25 reference. It appears that this draft text has moved further away from Chapter VII elements in comparison to resolution 2118.

Council members are broadly agreed that the draft resolution sends a strong political signal that the chemical weapons track will remain a central component of the Council’s work on Syria. However, they also admit that the draft is only declaratory in nature and doesn’t impose any new obligations nor does it impose any coercive measures, such as sanctions. In this regard, the adoption of a new resolution on the chemical weapons track, its symbolic message notwithstanding, is unlikely in any significant way to impact the use of chlorine bombs in the Syrian conflict.

Postscript: Resolution 2209 was adopted with 14 votes in favour and 1 abstention (Venezuela).

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