You are here: Nerve gas and international institutions

13 March 2018

The use of a chemical weapon in an attack on two people in Salisbury has caused a major diplomatic incident, with the Prime Minister claiming that "either this was a direct act by the Russian State against our country. Or the Russian government lost control of this potentially catastrophically damaging nerve agent and allowed it to get into the hands of others."

Various responses are being considered, and there has been speculation as to how this relates to international instituions and frameworks such as NATO and the UN. Could these institutions and international law be helpful in navigating a way through this crisis? We explore some of the processes and options which demonstrate how vital multilateral institutions and our rules-based global system are in maintaining security and mitigating the risk of conflict.

The Chemical Weapons Convention (CWC) and Organisation for the Prohibition of Chemical Weapons (OPCW)

The United Kingdom and Russia (indeed all countries apart from Egypt, Israel, North Korea and South Sudan) are signatories to the CWC which prohibits the use of chemical weapons and calls for their destruction. The OPCW oversees the process of destroying all such chemicals (chemicals that fall under a specific prohibited category or chemicals - such as those used in the Salisbury attack - that are prohibited under the "general purpose criterion"). The work of OPCW was particularly notable in Syria where, working with the UN's Office of Disarmament Affairs (ODA), they oversaw the destruction of all of the Syrian Government's declared stockpiles, thus significantly limiting the frequency and intensity of chemical attacks in the conflict.

96% of the world's declared stockpiles have already been destroyed, including - allegedly - all of Russia's. Only the United States, Iraq and Japan still have declared chemical weapons stocks, all slated for destruction by 2023. This poses questions as to the origin of the chemical weapons used in Salisbury. It would be appropriate for the OPCW to investigate this question and determine if a breach of the CWC has taken place and if undeclared stocks of chemical weapons remain in circulation. The convention of state parties to the CWC could then suspend a nation from the CWC or even recommend sanctions.

A United Nations International Independent Investigation Commission

In some previous incidents of high profile political assassinations (although not thus far as a consequence of a failed attempted assasination) the UN has established an Investigative Commission to determine how the attack came about and who the likely perpetrators were. The assassinations of Benazir Bhutto and Rafic Hariri are notable examples.

This is highly unlikely in this case. Such an inquiry would most likely have to be established by the UN Security Council, and it is unlikely that Russia would agree to such a move - a clear example of the limitations of the Security Council when it comes to big power relations. Further, other Security Council members may feel that the issue does not meet the threshold for severity to be an issue relevant to the maintenance of international peace and security. Previous investigations have concerned successful assasinations of serving or potential heads of state. 

The International Criminal Court would also be highly unlikely to intervene. The position of attempted assassinations and targeted killings in international law is unclear, but they are probably illegal. However it is debatable as to whether they could be considered a war crime as defined in the Rome Statute: one would first need to show that the act should be considered to be a part of an armed conflict (either that an armed conflict pre-existed or that the act marked the start of one), then that the act was "part of a plan or policy or as part of a large-scale commission of such crimes" and then that the act itself constitutes a war crime. (The use of "Asphyxiating, Poisonous or other Gases" is recognised as a crime under the Rome statute, but there is some controversy over if this can be taken to mean all chemical weapons - a Belgian ammendment to make this explicit has not yet entered into force. "Wilfully causing great suffering, or serious injury to body or health" is also considered a war crime, but the Prosecutor of the International Criminal Court might not consider it a grave enough breach).

The Vienna Convention on Diplomatic Relations

It is normal for diplomatic crises of this sort to lead to the expulsion of ambassadors or other diplomatic staff. This can in turn lead to reprisal actions. Such acts send a strong signal of diplomatic disapproval, and can undermine the ability of states to project influence into the diplomat's host country. However, this comes at a cost to the ability of both countries to engage in the diplomatic discussions necessary to resolve crises (although back channel and "track two" diplomatic processes can be of assistance).

The process of expelling ambassadors and conducting diplomatic reprisals is overseen by the Vienna Convention on Diplomatic Relations. Palau, the Solomon Islands, South Sudan and Vanuatu are the only countries in the world that are not signatories. The Vienna Convention maintains the framework under which diplomatic relations can remain possible regardless of circumstances, and are thus a vital part of our global system of rules. Without them, maintaining peaceful relations between countries would be almost impossible. The convention states:

"The receiving State may at any time and without having to explain its decision, notify the sending State that the head of the mission or any member of the diplomatic staff of the mission is persona non grata or that any other member of the staff of the mission is not acceptable. In any such case, the sending State shall, as appropriate, either recall the person concerned or terminate his functions with the mission."

The Office of the High Commissioner for Human Rights

The use of chemical weapons is cruel, endangering to life and could be considered a form of torture. As such it will almost always constitute a human rights violation. It is therefore within the mandate of the UN's human rights bodies: the  Human Rights Council and the Office of the High Commissioner for Human Rights. These branches of the United Nations are severely stretched and significantly under resourced. Investigating this act thus needs to be balanced against the Organisation's ability to respond to other grave human rights violations elsewhere in the world.

Specific instances of this kind lend themselves readily to investigation and action by one of the UN's independent experts or special rapporteurs. However this particular incident does not readily fall within the remit of any one special rapporteur. The Special Rapporteur on extrajudicial, summary or arbitrary executions considers targeted killings as part of their mandate, but not targeted actions short of killing. The Special Rapporteur on counter-terrorism and human rights investigates the work of security and intelligence services, but only when countering terrorism. A new mandate looking specifically and holistically at the work of security and intelligence services might have a deterrent effect when it comes to such services violating human rights and international law.