What the OPCW Interim Report on Douma Says and What it Does Not Say

The alleged use of chemical weapons in Douma, Syria on April 7, 2018 has gained particularly notoriety due to the fact that the United States, the United Kingdom and France laid the blame on the al-Assad government and delivered a missile strike on Syria without waiting for an international investigation. Russian and Syrian representatives, for their part, turned up at the OPCW headquarters in The Hague with some of the people who had been depicted in photos and video footage by the media as victims of the chemical attack, clearly demonstrating that the people in question had in fact sustained no injuries. This proved that the attack had in fact been staged.

These developments coincided with the controversial decision to grant the OPCW the right to determine responsibility for the use of chemical weapons, which was adopted in late June 2018 at the initiative of Western countries. A total of 82 member nations voted for the decision, as opposed to the coalition of 24 countries led by Russia, Syria and Iran.

The decision imposed by the West to give the OPCW the power to assign responsibility for the use of chemical weapons has turned the organization into a platform for active political infighting. The coalition of 24 nations will now have to critically analyse the performance of the Fact-Finding Mission (FFM) inspectors, lest their work be taken as a precedent and, in the absence of criticisms, as an accepted modus operandi for the future.

The alleged use of chemical weapons in Douma, Syria on April 7, 2018 has gained particular notoriety due to the fact that the United States, the United Kingdom and France laid the blame on the al-Assad government and delivered a missile strike on Syria without waiting for an international investigation. Russian and Syrian representatives, for their part, turned up at the headquarters of the Organisation for the Prohibition of Chemical Weapons (OPCW) in The Hague with some of the people who had been depicted in photos and video footage by the media as victims of the chemical attack, clearly demonstrating that the people in question had in fact sustained no injuries. This proved that the attack had in fact been staged.

These developments coincided with the controversial decision to grant the OPCW the right to determine responsibility for the use of chemical weapons, which was adopted in late June 2018 at the initiative of Western countries. A total of 82 member nations voted for the decision, as opposed to the coalition of 24 countries led by Russia, Syria and Iran.

All the parties involved eagerly awaited the results of the OPCW’s Fact-Finding Mission (FFM) in Syria, which began its investigative work in Douma five days after the alleged attack. However, what the FFM released on July 6, 2018 was merely an interim report. This means that a final report has yet to be published.

So, what does this interim report say? What it does not say? And what can be inferred at this stage?

What the Report Says

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The FFM worked in Douma, Syria and in an adjacent unnamed country. One opinion holds that the country in question is Turkey, but there are no direct indications to that effect in the report.

In Douma, inspections were carried out in two city blocks where gas cylinders had been found, in a hospital and in two other premises (a building and a storage facility), where chemical weapons may have been manufactured. More than 100 environmental samples were taken at these sites, of which 31 samples were analysed by OPCW-certified laboratories. According to the report, “No organophosphorus nerve agents or their degradation products were detected” in the samples. The samples taken at the sites where the gas cylinders had been found tested positive for chlorinated organic substances and explosives.

The inspectors collected a vast amount of information about the gas cylinders, one of which had been found on the terrace of a top-floor flat and another on a bed in a top-floor flat. In both cases there was a hole in the concrete ceiling close to each cylinder. The information thus collected will now be examined by specialists to assess the damage to the cylinders and the ceilings and find out how the cylinders could have ended up where they were found.

The FFM did not find any signs of such activity at the sites suspected to have been used for the manufacture of chemical weapons.

In the unnamed country, the inspectors obtained various biological and environmental samples from third parties and conducted interviews with potential witnesses. A total of 34 people were interviewed; 13 interviews were held in Douma and the rest were conducted in the unnamed country. The interim report contains no information about these interviews.

What the Report Does Not Say

The OPCW report lists a number of chlorinated products found in the samples collected in Douma, including those taken from surfaces adjacent to the gas cylinders. This logically raises the question of whether chlorine was used. The list of the chlorinated chemicals found is fairly short: Dichloroacetic acid, trichloroacetic acid, chlorophenol, dichlorophenol, trichlorophenol, tetrachlorophenol, chloral hydrate and bornyl chloride. None of these compounds can be formed in a simple reaction with chlorine. As a rule, this would require heating to at least 70–80 degrees Centigrade, the presence of catalysts or ultraviolet light and the presence of solvents, since reactions yielding such substances do not occur in the gas phase under normal conditions.

Even more alarming is the fact that only one of the two accredited laboratories found dichloro- and trichloroacetic acids. Furthermore, the findings of these two laboratories differ substantially. Laboratory 2 found chlorinated chemicals in 11 environmental samples out of 20, while Laboratory 3 found them in only 5 samples. Both laboratories found the same chlorinated substance (bornyl chloride) in just one sample. In that same sample, Laboratory 3 found α-pinene (turpentine), from which bornyl chloride can be obtained. For this, however, turpentine must react with hydrogen chloride, not chlorine.

The fact that two accredited laboratories could not find the same substances in the same samples indicates very low concentrations of these chlorinated substances. At the same time, the gas cylinders found are estimated to have a capacity of 30 to 70 litres. Since the cylinders were found inside confined spaces, a significant portion of chlorine was bound to settle on the surfaces and react, as chlorine is a very active substance. If the windows had been broken, about a third of all the chlorine amount (between 15 and 30kg) should have remained inside the premises, because chlorine is heavier than air and tends to cling to the floor. If the doors and windows had been shut and the only way out of the premises was through the breaches in the ceiling, then virtually all the chlorine should have remained in the rooms, displacing the air, since the maximum amount of chlorine such a cylinder can contain would be about 40 cubic metres, which corresponds to a room measuring 4×4×2.5 metres. This means that the concentration of substances that had to be chlorinated with such a large amount of chlorine in the premises where the cylinders had been found had to be very high, so the laboratories would have no problems detecting identical substances in the samples. This, however, is countered by the actual laboratory findings, meaning that we will have to wait for the final report to explain these contradictions.

One important factor in proving the use of chemical weapons is how the cylinders ended up where they were eventually found. Syrian troops could not have brought them in from the street. The only possible way to have done this would have been to drop the cylinders from an aircraft. If the cylinders had been brought in by hand, this would suggest that the incident had been staged. Therefore, the damage to the cylinders is key to the final conclusions. If they had been dropped from a height, breaking through the concrete ceilings in the process, the cylinders should have sustained severe damage. However, not only does the FFM avoid talking about the damage to the cylinders, it does not even give a description of their state. This may indicate that the results of the external examination extremely controversial and may thus prevent from making unequivocal conclusions. The FFM is planning to contact various expert organizations for their opinion of whether the damage to the cylinders corresponds to the destruction found in the premises in which they were found, and of how they may have ended up there. The results of this analysis are expected to be mentioned in the final report.

The FFM inspectors also visited the hospital which allegedly assisted victims of the alleged attack and where, in accordance with OPCW rules, the inspectors were supposed to interview medical personnel, familiarize themselves with patient records, collect environmental samples, etc. However, the interim report does not contain any information that should have been collected by the inspectors in that hospital. This is all the more strange, as such information does not require any additional processing or analysis. It merely describes the facts, such as the number of people who applied for medical assistance on the day of the alleged attack, how many of them had symptoms consistent with such an attack, how many of them died, what medicines were used when providing first aid, and so on. Obviously, this data can be expected in the final report.

It is also worth noting that of the 129 samples collected by the inspectors in Syria, 35 were not directly taken by experts; rather, these samples were handed over to them by third parties. Most of the samples thus collected are biological materials: blood, plasma and hair samples. The chain of custody was clearly not ensured in these instances, because the inspectors were not present at the time and place of collection and there was no objective monitoring of the samples’ authenticity. At the same time, the significance of these samples when deciding on whether or not chemical weapons were actually used may be determined through a non-transparent procedure.

Now What?

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The decision imposed by the West and empowered the OPCW to assign responsibility for the use of chemical weapons has turned the organization into a platform for active political infighting. The coalition of 24 nations will now have to critically analyse the performance of the FFM inspectors, lest their work be taken as a precedent and, in the absence of criticisms, as an accepted modus operandi for the future.

What Can be Expected of the Coalition of 24 Nations?

First, the coalition is likely to raise the issue of the nationality of the FFM inspectors. The coalition will not just have to question the Technical Secretariat as to how thoroughly the principle of equitable geographical representation is observed – it should also insist that the Syrian inspection teams do not include representatives of those countries involved in the Syrian hostilities.

In accordance with the Chemical Weapons Convention (Verification Annex, Part IIA, paragraph 2), any State Party has the right to deny entry to any inspector. The Convention therefore protects the participating countries against any bias or abuse of inspector status by citizens of hostile states. However, seeing as the lists of inspectors in the case of the FFM for Syria had been agreed prior to the alleged Douma attack, it would be impossible to prevent a visit to Syria by an inspector who is a citizen of a state which had identified Syria as guilty and punished it with a missile strike prior to any formal investigation. It is true that inspectors do not formally work for their respective governments, but how can one expect an inspector to make an objective decision when they already know the decision that their own states have made? The coalition of 24 nations might go even further and insist that, in the spirit of the Convention, citizens of all countries that are members of military blocs involved in the Syrian infighting be excluded from the inspections.

Similar requirements could be applied to the expert organizations the OPCW Technical Secretariat is planning to involve in analysing information obtained by the FFM inspectors. Since expert organizations are dependent on their host countries, the principle of objectivity requires that organizations based in countries involved in military operations in Syria or are members of a military bloc involved in such operations be denied the right to participate in the analysis of such data. If this principle is not observed, then the participation of expert organizations should be based on an equitable geographical representation basis.

The OPCW’s approach to the probability of chemical weapons being involved in incidents might also have to be reviewed. The organization currently uses the following classification:

• high probability: there is a significant body of evidence indicating the use of chemicals as chemical weapons;
• medium probability: there is some reliable information indicating that chemicals may have been used as chemical weapons; this information, however, is not sufficient for asserting that chemicals were in fact used as chemical weapons;
• low probability: there is no or insufficient information about the use of chemicals as chemical weapons, or the information available indicates a low probability of the use of chemical weapons.

Now that the OPCW has been given the power to assign responsibility for the use of chemical weapons, it is necessary to determine the situations in which the organization may use this right. All three criteria currently in use are probabilistic, and none of them gives a 100 per cent guarantee. In theory, a situation could arise in which the OPCW identifies a party as being responsible for a low-probability incident. It should also be noted that the current classification is subjective, even though the classification procedure itself may be quite detailed. The difference between “insufficient information” and “certain reliable information” can be interpreted differently by different people.

This raises the question of how transparent the FFM inspectors’ investigation is. The question is important, because the investigation will be instrumental in determining the guilty party. Back when the OPCW–UN Joint Investigative Mechanism (JIM) was in charge of assigning responsibility for chemical attacks, it observed the principle of fairness. Thus, the Mechanism was adopted by the UN Security Council, the highest and most responsible body in maintaining international security within the United Nations. The Security Council acted not just as the supreme court but also as the defence for the accused. If a permanent member of the Security Council believed that a given decision taken by JIM was unfair, it could veto that decision. Russia used this veto power to block an extension of JIM’s mandate in November 2017. By contrast, the OPCW will now act simultaneously as the investigator and the prosecutor, but there will be neither defence nor jury. Moreover, the accused party will not be able to challenge the OPCW’s decisions in the supreme court, and there will be no adversarial system in place.

These shortcomings of the new prosecution system must be offset by extreme transparency of the inquiry. However, the FFM’s operations are kept very much under wraps. Its reports arrive at very serious conclusions but only contain information of general nature. On the one hand, the OPCW is guided by the principle of non-disclosure of information about the individuals and organizations providing information and analysing samples and investigative materials. On the other hand, this approach might results in lower responsibility when it comes to interviews with witnesses or expert assessments by specialized organizations. In addition, FFM reports do not contain any information as to the role played in the decision-making process by third-party samples, where the chain of custody was not observed in this instance.

The FFM’s powers may also come under scrutiny. Its Douma report makes three mentions of the fact that the Syrian authorities did not grant the inspectors access to a private apartment in the residential block that was being inspected (Para. 2.3, 6.9 and 8.9). The FFM says the Syrian representatives explained that there were no owners inside and the apartment was locked, and that they had no right to access private property without the owners’ permission. The fact that the incident was mentioned three times in the report presumably indicates that the FFM interprets this as lack of cooperation from the Syrian representatives, i.e. that the Syrian authorities were attempting to hinder the objective investigation. It appears that the inspectors had no right to demand that the Syrian officials violate private property; nor did they have the right to blame the Syrians for observing the fundamental rule of law.

The coalition of 24 nations will most likely discuss these and other issues both at the forthcoming meetings of the Executive Council of the OPCW and at the next session of the Conference of the States Parties. However, if the FFM’s final report reads that there is no significant evidence of chemical weapons used in Douma, and this conclusion placates the coalition of 24 nations, then the coalition’s window of opportunities to maintain its position will narrow in the future.