December 8, 2020

Investigating War Crimes in Syria: justice and accountability or politics and deception? (The case of OPCW, IIIM and their conjunction)




In Syria since 2011, the human suffering has been beyond description. The scale of death and displacement of people, the destruction of lives and livelihoods, has been impossible to record with any accuracy. How the war in Syria started and developed are matters about which there is considerable controversy. What is not doubted on any side, though, is that the people of Syria can attest to terrible evidence of war crimes. There is an international responsibility – both moral and legal – to investigate those crimes and, as appropriate, punish the perpetrators. To that end, the United Nations (UN), already in August 2011, established the Independent International Commission of Inquiry on the Syrian Arab Republic (CoI) [1]. However, ascertaining facts in the circumstances of war is never a straightforward matter, and the complexity of those in Syria – combined with an unprecedented degree of informational warfare enjoined on all sides – has made the task extraordinarily challenging.

A prudent inference to be drawn from this starting point is that fact-finding about events in Syria is liable to encounter not only such difficulties as are inherent in situations of conflict but also those attendant on multiple, and sophisticated, strategies of conscious deception. Legal standards of justice require proof beyond reasonable doubt of a genuine crime having been committed by an identifiable perpetrator. That standard of proof is especially difficult to achieve in relation to events in Syria. It is therefore understandable why legal experts focused on the pursuit of justice and accountability for war crimes have supported innovative strategies for carrying out that challenging task.

The introduction of innovation into the pursuit of justice, however, is not without its risks. In criminal justice the standard of proof is demanding because societies have learned throughout history that anyone can be deceived and that criminals can often find ways to make it appear that other agents are guilty of the crimes they have committed. There is also a normative presumption that has been generally agreed upon as fundamental in a civilised society which places the burden of proof on the accuser, not the defendant. The presumption of innocence is grounded in a moral belief that it is worse to punish an innocent party – and thereby add wrong on wrong – than to leave unpunished a guilty party. On the other hand, the importance of identifying the guilty, particularly if there is a risk of their committing further crimes, is a strong motivation for seeking proof. So there is an inherent tension in the very project of seeking justice in relation to war crime, and the attendant risk is that innovation in its pursuit could lead to undermining older principles that, even while sometimes impeding successful prosecutions, provide restraining safeguards that everyone ultimately relies on.

This dilemma can in principle be managed by experienced and well-informed jurists who cooperate in good faith to arrive at reasoned judgements that balance conflicting principles in their deliberations. Problems can be expected to arise, however, when such matters are addressed in other kinds of forum, particularly those that are open to political contestation by parties whose approach may be less centred on collaborative reason and more on the pursuit of particular interests. This is why the constitutional arrangements of a genuinely democratic society generally require a clear separation of judicial powers from those of politicians. If political influence is brought to bear on the workings of justice, justice is liable to be subverted.

This, then, is a general risk that has to be kept in mind when thinking about how to address the question of war crimes in any given situation. The situation in Syria is one in which both the need to seek justice, perhaps even innovatively, and the risks of doing so, including those of politicising its operation, are particularly great.

This paper discusses how international agreement about general principles has been undermined by some specific organisational innovations promoted by some nations, in the face of opposition from others, that demonstrably fail to deal adequately – or therefore justly – with the dilemmas of principle and practice indicated in this introduction.  The first organisation to be considered is the Organisation for the Prohibition of Chemical Weapons (OPCW). This has played a particularly prominent role in relation to Syria because of the early decision of the US administration under President Obama to declare the use of chemical weapons a ‘Red Line’ the transgression of which would trigger military intervention in the war – this being something that the opposition, more than the Syrian government, had reason to wish for. Another organisation, also created under the auspices of the UN, if without the same degree of consent and commitment as the OPCW, is the International, Impartial and Independent Mechanism (IIIM) [2]. Where OPCW investigations are primarily oriented to fact finding, the IIIM is oriented to preparing documentation that would support prosecutions. The IIIM is not restricted to prosecuting crimes involving chemical weapons, but it does include them. In fact, the OPCW and the IIIM have signed a Memorandum of Understanding to underscore their intention to collaborate.

In the first two parts of this study I shall show there to be serious reasons for concern about the politicisation of both the OPCW and the IIIM, respectively; Part 3 is to discuss how their collaboration reinforces those reasons for concern. The argument not only involves criticisms of the lack of impartiality and independence in the operations of those organisations but raises fundamental questions about how, by representing the interests of some nations against other, they are contributing to the erosion of international normative agreements of fundamentally important kinds.


Part 1: The OPCW: a reputation at risk

The use of chemical weapons is one cause of atrocities that human beings have collectively sought to prohibit. The desirability of doing so is uncontested, and mechanisms for achieving that end have been to a considerable degree agreed upon internationally. The Organisation for the Prohibition of Chemical Weapons (OPCW) is the main vehicle for ensuring respect for the Chemical Weapons Convention (CWC) that all states – except Egypt, Israel, North Korea and South Sudan – have ratified. OPCW’s investigators are looked to for expert and impartial advice about chemical attacks and how to prevent them. From its creation in 1997 – and notwithstanding the 2002 scandal when US official John Bolton headed an aggressive campaign to remove OPCW Director General Bustani because he appeared to be helping Iraq show willingness to relinquish chemical ‘weapons of mass destruction’ (WMD) – the OPCW came to enjoy respect internationally, for doing the job it was charged with.

Controversies were to arise, however, as the organisation came to undertake investigations focused on allegations concerning chemical incidents in Syria. Created specifically for that purpose, in 2014, was the Fact-Finding Mission (FFM), whose findings were then the basis for the work of the OPCW-UN Joint Investigative Mechanism (JIM), established by the UN Security Council in 2015. The JIM’s purpose was to identify the perpetrators of chemical attacks confirmed by the FFM. The JIM worked from facts supplied by FFM, although it could also take into account information from whatever other sources it deemed germane. The JIM’s mandate expired in November 2017, however, and was not renewed.

The non-renewal of the JIM mandate was due to dissatisfaction in some quarters about its work, particularly in relation to the incident at Khan Sheikhoun in April 2017 [3]. From the early days of the Khan Sheikhoun investigation, the head of the JIM, Edmond Mulet, had complained about massive political pressure being placed on the inspectors [4]. The report he went on to deliver in October 2017 was, in the view of critics, so full of lacunae that its conclusion could only be regarded as a non sequitur [5]. Unsurprisingly, in view of this, those states that were not invested in achieving a verdict against the Syrian Arab Republic (SAR) were outraged enough – at the JIM’s tendentious delivery of one – to decline to renew the JIM’s mandate.Russia was a leading critic of JIM, and was accused by opponents of being invested in a contrary verdict, but the fact is that the work of OPCW-FFM was increasingly coming to be perceived also by independent observers as compromisingly politicised. Indeed, in March 2018, at the eighty-seventh meeting of the OPCW Executive Council, a statement made by Venezuela, on behalf of the Member States of the Non-Aligned Movement (NAM) and China, included the following warning:

‘The NAM CWC States Parties and China express their deep concern regarding the attempt to accuse States Parties of using chemical weapons on the basis of unsubstantiated allegations made by media reports or other open sources, including non-governmental entities. This trend can cause a dangerous precedent in the future work of the OPCW.’

Shortly after that meeting, there came a further alleged chemical attack in Douma. This was the one of 7 April 2018 that served as the pretext for France, America and Britain to fire 103 missiles into Syria a week later. Profound scepticism about allegations of Syrian government responsibility for the incident was voiced in many quarters from the outset [6]. The OPCW was to take almost a year to release its Final Report on the incident. The report would reasonably have been expected to be ready for release by June or July 2018, but at that time, instead – and for reasons not fully explained – the OPCW issued merely an ‘Interim Report’. When the ‘final report’ was eventually published in March 2019, informed commentators were dismayed at its lack of professionalism (see the concerns set out by the Working Group on Syria, Propaganda and Media (WGSPM)).

Shortly afterwards, in May 2019, came a further blow to the OPCW’s credibility. A document leaked via the WGSPM revealed the existence of an engineers’ assessment of the Douma incident whose findings had been suppressed by OPCW. This assessment pointed to a conclusion diametrically opposed to that provided in the Official Report. The world now learned that the engineers who had examined the site during the original inspection of Spring 2018 considered the chemical incident more likely to have been staged (which implicated opposition operatives on the ground), than to have resulted from an airdrop (which would implicate government forces).

At the time of writing, OPCW has given no satisfactory explanation for this revelation that is – on its face – evidence of egregious falsification of the OPCW report. Such comments as have come so far from the OPCW have been mutually self-contradictory (as shown in another WGSPM Briefing Note).

The credibility of the organisation, as things currently stand, is in serious question. Eminent disarmament authority Sergey Batsanov has noted the ‘huge credibility problem of OPCW’ [7] and even the man who led the OPCW’s investigation into the 2013 chemical attacks in Ghouta, Åke Sellström, has confirmed that political conflict among members ‘influences the daily work of the OPCW’. He illustrates how there is good reason for

‘genuine distrust in many geographical regions against supranational structures such as the UN and the OPCW. They are considered western instruments created to maintain control. The structures are judged to use double standards and biased processes to implement rules that benefit the West’ [8].

This only tends to reinforce the wider lessons that Scott Ritter, former UN inspector of Weapons of Mass Destruction in Iraq, draws from the revelation of OPCW’s suppressed Douma report. The organisation had been shown to have ‘violated the very operating procedures that had been put in place by the OPCW to protect the credibility of the organization and its findings’ [9].

In considering the potential depth of the problem at the organisation, it is important to emphasise, as the WGSPM briefing note of McKeigue et al (2019) does, that the Douma incident was the only alleged chemical attack in Syria where OPCW investigators had actually been able to carry out an unimpeded on-site inspection. Hitherto, OPCW Fact-Finding Missions investigating alleged chemical attacks in opposition-held territory had relied for evidence on witnesses and materials collected by opposition-linked NGOs of doubtful provenance, including the CBRN Task Force, the Chemical Violations Documentation Centre Syria, and the White Helmets. Given, then, that previous investigations did not include on-site inspections,[10] ‘the finding that the Douma incident was staged, based on a careful on-site inspection, should cast doubt on the findings of these earlier Missions.’ Ritter refers to ‘an old prosecutorial rule—one lie, all lies—that comes into play in this case.’ On this basis, he suggests,

‘all information ever provided to the OPCW by the White Helmets, SAMS, and other Syrian opposition groups must now, in my mind, be viewed as tainted and therefore unusable. … The credibility of the OPCW itself and every report and conclusion it has released concerning allegations of chemical weapons use by the Syrian government are now suspect.’

Unfortunately, serious concerns go even beyond this, for there are darker questions still that have to be considered. If chemical attacks were staged, and reporting on them was unreliable, how did that reporting come to be given credence in the first place? Who has been amplifying the claims? The critical investigations conducted by WGSPM and others have indicated signs of possible coordination in the chemical incidents that prompts more probing questions about the nature of involvement of various actors in the stability and investigations fields, particularly those that have apparent working relationships with security services [11].  Discernible in the background to these operations, and in some cases providing documented funding, are organs of the UK state [12].

Nor do concerns stop at questions about whether the course of justice has in any way been impeded or misdirected. For the chemical events in Syria have involved real deaths. The possibility cannot be ruled out of those deaths having been caused by ruthless opposition fighters on the ground, who, incentivised by the announcement of a ‘Red Line’, created ‘false flag’ operations involving mass murder. This in turn leaves open serious questions about how clearly the involvement of those engaged in related media operations stops short of abetting such crime. It is conceivable that the misreporting of crime can shade into complicity in covering it up and even into some tacit complicity in the commission of it. The point here is not to suggest anyone is guilty of such complicity but to highlight the significance of even merely acquiescing in reportage that is, one might say, ‘economical with the truth’.

Nor is that the only war crime that those influencing OPCW investigations have a problematic relationship to. For it is further argued by McKeigue et al, ‘what is at stake here is more than the reputation of the organization: the staged incident in Douma provoked a missile attack by the US, UK and France on 14 April 2018 that could have led to all-out war. That strike was a contravention of international law and by definition a war crime’ [13].

Finally, and much worse still, is that there have to be concerns about the nature of the war in Syria and whether, in its very causes, it has not, in fact, involved acts of aggression such as constitute the supreme war crime. If such a crime has been committed, then the prime suspects would be those states that have done most to supply arms, training and funds to the anti-government fighters in Syria. Those states prominently include, although are not limited to, US, UK, France, and other European states, as well as Turkey, Qatar, and other Gulf States.

Even if those worst fears and allegations were – notwithstanding the evidence – to prove unfounded, concerns about the subversion of OPCW as an institutional element of a world drive towards greater peace and justice nevertheless remain. The accountability stakes are high. Genuinely independent and unimpeded international investigations would look at allegations not only against the Syrian state, but also against those states that have supported other fighters. Yet some of the latter have exercised influence over the reporting of the OPCW in Syria to date.

Hence, although all states internationally accept in principle the desirability of independent and impartial investigations, how these are to be conducted in practice is a matter of serious contestation. This has been made vivid in the controversy surrounding the OPCW’s recent agreeing of a Memorandum of Understanding with a mechanism created with the purpose of pursuing justice and accountability for war crimes in Syria. Before examining the implications of the agreement, the next part of this study provides an overview of that mechanism.


Part 2: The ‘International, Impartial and Independent Mechanism’ (IIIM): Is it any of those things?


From early in the conflict in Syria, there had been international concern about violations of human rights and crimes under international law in the country. For this reason, already by August 2011, the UN Human Rights Council had established an Independent International Commission of Inquiry on the Syrian Arab Republic (CoI). It was to report ‘violations and abuses committed by the Syrian government, anti-government armed groups and terrorist organisations’ [14]. As the situation in Syria worsened, a recurrent allegation made against its government was that it was using chemical weapons, which is a crime against international law and contravenes the Chemical Weapons Convention, to which the Syrian Arab Republic is a signatory. The matter was subject to considerable international controversy, however. For while NATO states were particularly keen to press those allegations, others – Russia, China and the non-aligned movement – were sceptical of the reliability of evidence for such attacks, and so had blocked action that was premised on their credibility. Against this backdrop of disagreement, the UN General Assembly was to establish, in Resolution 71/248, the ‘International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’ (IIIM). On the basis of a vote rather than consensus (with 105 for; 15 against; and 52 abstained) the creation of the IIIM was particularly driven by the US, with Ambassador Haley telling the UN that it would be ‘a valuable tool to hold the Assad regime accountable for its … repeated and ongoing use of chemical weapons’ [15].

The fact, however, is that while there was evidence of chemicals banned under the CWC being used on Syrian territory, there was no proof meeting any kind of legal standard as to who was responsible for the uses. Hence, the formal aspiration of the IIIM was supposed to be, as its name implies, ‘impartial’, and not exclusively directed to prosecution of the ‘Assad regime’; there was also no suggestion that the fundamental principle of legal justice, the presumption of innocence, should any more be suspended in the case of Assad than anyone else. In reality, however, the mechanism was caught between opposing political blocs and perceived to be under the greater influence of one of them. On the side of the Western states sponsoring it, a clear aim was to hold ‘the Assad regime’ to account for crimes already alleged. On the side of Russia and China, and also the numerous states of the Non-Aligned Movement, that aim was unacceptably prejudicial, politically motivated, and legally unsupported. Syria’s own representative criticized the draft Resolution as ‘an attempt to interfere in and politicize the Council’s ongoing political efforts to resolve the war in Syria.’ He argued that the establishment of the Mechanism ‘undermines the legal jurisdiction and procedures’ of Syria, and represents an attempt to ‘legitimize external interference’, including by its use of ambiguous terminology. Such concerns were further elaborated in a Russian note verbale [16].

How well founded are the concerns and criticisms? In principle, the aims of the IIIM seem to be in keeping with an international commitment to principles of justice and accountability. Some also see them as connecting with aims of transitional justice. Yet the two main components of the mechanism’s mandate do imply somewhat different kinds of remit. The first is investigative, namely, ‘to collect, consolidate, preserve and analyse evidence of violations’. The second, however, is quasi-prosecutorial, being ‘to prepare files to facilitate and expedite fair and independent criminal proceedings, in accordance with international law standards, in courts or tribunals that have or may in the future have jurisdiction over these crimes, in accordance with international law [17]’. Hence the IIIM is called a ‘quasi-prosecutorial’ body: while it is in principle to investigate all evidence of international crime relating to the war in Syria, it has also to assemble case files to support prosecution, which entails greater selectivity of attention on some perpetrators rather than others. It is only quasi-prosecutorial because it prepares material for use by others and would not be an actor in criminal proceedings, and yet it nevertheless seeks out material with a specific view to supporting prosecution of identified parties. The purpose of the criminal case files it develops is ‘to facilitate and expedite future criminal proceedings – wherever they may take place’ [18]. Moreover, its mandate is complicated further by the provision that ‘the Mechanism will also keep in mind broader transitional justice objectives that it could facilitate through the comprehensive evidence collection it is building.’ What exactly this means, however, either in principle or in practice, is not unequivocally clear or uncontroversial. It appears to introduce some rather unspecific political aspirations that are not necessarily amenable to impartial interpretation and are unlikely either to be amenable to straightforward implementation.

Critics thus see its mandate as blurring lines in problematic ways. A general concern is that this mechanism is part of a more general trend towards a blurring of lines between prosecutorial and court functions in international law cases. An investigative mechanism that is quasi-prosecutorial sounds like giving an impartial name to an entity that, from the standpoint of a prospective defendant or a disinterested bystander, may not seem impartial. As a prosecutorial service, a central ambition of the IIIM is to build case files that ‘seek to establish the connection between crime-based evidence and the persons responsible, directly or indirectly, for such alleged crimes, focusing in particular on linkage evidence. It focuses on evidence pertaining to mens rea and to specific modes of criminal liability, including under the principle of command or superior responsibility established under international criminal law’ [19]. The emphasis of this approach on the pursuit of linkage evidence is intended to establish command responsibility [20]. The use of linkage evidence involves certain practical and methodological challenges, even for crimes without a political dimension [21]. But the political dimension being so very prominent in the case of war crimes in Syria, there has to be some concern about whether and how the impartiality of the mechanism in its operation is adequately assured. In this regard, it is not necessarily reassuring to know that the IIIM relies very heavily for the materials of its linkage evidence on the private organisation Commission for International Justice and Accountability (CIJA) [22]. CIJA is a secretive organisation that is partnered by, and shares a director with, the private company Tsamota [23]. This works with groups of fighters and their associates on the ground in Syria in illegally procuring the massive collection of documents out of which the sought-for evidence is sifted. The aim, in amassing such a collection of documents, which come almost exclusively from the Syrian government side, is ‘to draw strong links, through regime documents and testimony by witnesses and victims, between Syrian government policies and their effects on individuals [24]. The expectation, as stated by Chris Engels, who leads CIJA’s regime-crimes unit, is to find ‘evidence linking high-level Syrian officials to mass atrocities [25].’ Furthermore, IIIM places considerable reliance also on information gathered by the Syrian Network for Human Rights (SNHR), and has apparently even entered a Memorandum of Understanding with this organization [26]. Yet this source is notoriously controversial and its reporting is not regarded by critics as impartial or objective [27].

Questions can also be asked about how genuinely international is the project of which the IIIM is an emanation. Two sets of questions, in particular, are worth highlighting. One relates to the fact that the creation of the mechanism has been driven by a particular group of states, not only without the support of all, but even in the face of opposition from some. The initiative can in fact be seen as but part of a suite of activities that have been undertaken in recent years, with generous funding from US, UK and a number of other Western nations, in pursuit of ‘justice and accountability’, on terms that they define. This pursuit has in fact been underway for some time, for the IIIM incorporates evidence that has already been garnered by other agencies that have been supported by Western funding since early in the war, notably CIJA and SNHR. A key figure in this broader overarching movement, whose influence is evident in relation to all its main players and organisations, is the American diplomat and war crimes prosecutor Stephen Rapp [29]. He is explicit in seeing its main goal as being to ‘“strengthen the international system” of justice and accountability for atrocity crimes’. He sees it as a work in progress: ‘we’ve done enormous things in twenty years’, he says, and ‘[t]here are efforts at the national level that continue to impress”. He speaks of a changing paradigm, and one involving ‘progress that is not easily to be undone [29]’. Yet this idea of progress is not one that all would endorse. For Rapp’s pursuit of ‘justice and accountability’, and his quest to shift the very basis of international law, is accompanied by a drive that has seen him being among the most persistent lobbyists on Capitol Hill for regime change – in Libya before Syria. More widely, Rapp has been campaigning for changes in international criminal law that would lower the barriers to prosecution for atrocity crimes, wherever they are identified. He advocates in general terms a principle of ‘no peace without justice’, which he interprets as implying a ‘responsibility to prosecute’, whose ultimate implications would be to enhance the legitimacy of externally imposed regime change operations on any nation – not just Syria – whose leadership is deemed to be oppressing its people and standing in the way of democracy and freedom as the intervening powers see it [30]. To that end, Rapp appears committed to promoting innovative jurisprudence and hybrid courts. It would be facilitated by the emergence of a principle of ‘universal jurisdiction’, a principle that has gained particular traction in Germany and some other European countries too, including Spain, France and Sweden. Yet such prosecutions under universal jurisdiction are, in the estimate of Ingrid Wuerth, ‘likely to fuel, not quell, complaints that universal jurisdiction is applied selectively [31]’. With partiality and selectivity making inroads into international law in the name of high-minded and supposedly ‘universal values’, the sense in which there truly is an international normative order – as appeared to be the case in agreements reached after World War 2 – is at evident risk of erosion. Thus Ramesh Thakar has written with concern of how the West’s response to events in Syria reflects critical global governance shortcomings and in turn will ‘exacerbate the pathology of a broken system of international order’ [32]. In doing so, he also makes a crucial point that the Western powers tend to disregard and that leads to the second question.

The second line of questioning about how genuinely international the IIIM is likely to be goes directly to the heart of its mission. If it is to be investigating international crimes, then it ought to be open to recognizing a fundamental principle that was enunciated at the seminal source of war crime definition, the Nuremberg trials. Thakar explains:

‘In its judgment in 1946, the Nuremberg International Military Tribunal described aggression as “the supreme international crime differing only from other war crimes in that it contains within itself the accumulated evil of the whole”. The only body with the power to punish aggressors is the UNSC and the US, UK and France are three of its five permanent members. Should the OPCW investigation prove jihadist instead of regime culpability, there is no chance that the P3 will be held to international criminal account for the supreme international crime. The net effect might well be to devalue the role of law and norms in regulating state conduct and stimulating a remilitarisation of world affairs.’ [33]

The question of whether IIIM would be prepared to investigate those international actors whose support and funding could be seen as complicit in a war of aggression in Syria was put to the Head of IIIM in an interview. Her response lacked any of the directness, clarity, or detail to be found in her answers to questions about how case files against ‘the Assad regime’ would be developed. A fundamental concern has to be that the creation of the IIIM was supported by some of the very countries that had been involved in overt and covert support for insurgency in Syria, which potentially made them liable to charges of war crimes under principles and precedents established at Nuremberg. In light of this, critical questions about the impartiality and independence of the IIIM are compounded by concerns about how to ensure it will work in accordance with objective principles of justice and not be subject to unmanageable conflicts of interest. Such concerns are hardly assuaged by noting the funding arrangements.

The independence of the mechanism is thus also a matter where skepticism is not unreasonable. It is noteworthy that some of the principal funders of IIIM were principal funders of the insurgency in Syria. The text of the UN Resolution (71/248) to establish the IIIM ‘was drafted by Liechtenstein and consulted initially in a group of like-minded states coordinated jointly by Qatar and Liechtenstein.’ Yet Qatar is known to be one of the biggest funders of the insurgency in Syria and thus could quite conceivably be implicated as a suspect in any inquiry into war crimes in Syria that fully respected the Nuremberg principle mentioned above. Other principals also include states that have been highly active in providing significant support to opposition fighters – including US, UK, France and Netherlands [35].

Writing in defence of the IIIM, Christian Wenaweser and James Cockayne have especially sought to rebut objections as formulated by Russia. They claim, in particular, that ‘[i]t is not interference in Syria’s domestic affairs, because it aims to help any actor with valid jurisdiction over international crimes in Syria’ [35]. This argument, however, appears to sidestep the more basic point that standards for validating jurisdiction and identifying crimes are themselves part of the controversy. Wenaweser and Cockayne claim that it ‘increases the prospects of justice for Syria’. But in spelling out how they suppose this to be the case, the claim is significantly modified: ‘While not guaranteeing justice for Syria, the mechanism significantly enhances the prospect of future accountability’ [36]. Again, a crucial point – this time about which range of actors are likely to be held accountable – is avoided. So the main substance of the reasons non-aligned nations resist the IIIM are simply not here addressed [37].

So there are reasonable doubts about how genuinely the IIIM can be described as international, impartial or independent. At root, fundamental principles of justice – substantive and procedural – are at stake. IIIM’s mission is caught, even assuming good faith and propriety on the part of everyone concerned, in a fundamental dilemma. As Ramesh Thakar puts it, ‘the politics of a permissive environment for punishing heinous war crimes works against the requirements of a forensic examination that can provide the necessary proof of culpability’ [39]. In the case of Syria, which IIIM was established to deal with, the situation has such complexity and opacity that no conscientious observer could be truly confident – in advance of proof being established beyond reasonable doubt – about which suspects could be implicated in which crimes. The fact that the IIIM has such an evident political agenda, such compromised collaborators, and such a controversial normative framing makes it look unpromising to independent nations or, I submit, to any independent analyst.

The regrettable truth is that critics have good reason to see this mechanism as not truly international, nor impartial, nor independent.


Part 3 OPCW and IIIM enter a controversial Memorandum of Understanding

In the first two parts of this study it has been shown that both OPCW and IIIM are open to serious questioning as to their effective independence and impartiality. The two are, of course, very different organisations. The OPCW was established to implement a genuinely consensual decision of all the nations in the world to prohibit the use of chemical weapons. The IIIM was pushed through by some states against the resistance of others to bring to ‘accountability’ the leadership of one particularly resistant nation, Syria.

So members of the human collectivity have some good reason to want to save the OPCW from its risk of mismanagement due to political capture and restore its reputation and capacity as a watchdog serving the interests of human beings throughout the world. The IIIM, by contrast, is an entity that has only partial support among nations of the world, and answers to no similar fundamental human imperative. Since some nations consider it should not have been created, they presumably would be content for it to be abandoned. If we therefore think in terms of the international legitimacy of the two UN creations, at least as this is assessed from the normative perspective developed in this paper, the one needs to regain it and the other cannot convincingly claim to have had it in the first place.

It is therefore a matter of further concern that the OPCW and IIIM have recently signed a Memorandum of Understanding. The agreement is that the OPCW’s Technical Secretariat shall ‘preserve and provide information to the investigation mechanism’, thereby ‘supporting the work of the III-M in facilitating fair and independent criminal proceedings (concerning the use of chemical weapons)’. The agreement was entered into without consultation with the States Parties to the OPCW. This action was justified, when challenged, by reference to ‘the established practice of directly concluding agreements and/or arrangements with international organisations which involve operational-level activities that are intended purely to facilitate the prompt and efficient work of the Secretariat’ [39]. This seems a little puzzling, however, insofar as the agreement appears to be about OPCW serving the IIIM rather than helping the OPCW in its operational-level activities. The explanation in response to this consideration is that ‘by supporting the work of the III-M in facilitating fair and independent criminal proceedings (concerning the use of chemical weapons), the implementation of the MoU is consistent with the obligations of States Parties under paragraph 1 of Article VII of the Convention.’ Whatever the merits of this particular piece of legalistic reasoning may be, it is significant that a number of States Parties – including not only Russia, but also the Non-Aligned Movement and China – have not found it persuasive. Their discontent can hardly have been unexpected, and one might have thought that the desirability of consensus-building would have told in favour of seeking full agreement rather than pushing through a decision that is controversial. There are also concerns about how the agreement on information would preserve due confidentiality in OPCW operations. The defence of the MoU maintains that it is consistent with the OPCW Policy on Confidentiality because it ‘falls within a particular category of agreements involving release of classified information to an international organisation’ [40]. However, the IIIM is also committed to sharing information it receives with various NGOs and other ‘Civil Society Actors’ that are by no means all legitimate international organisations in the eyes of all states.

One may get a sense of just how immersed in controversy this all is by simply considering the short statement of welcome for the MoU from the UN Representative for the Netherlands. After describing it as making ‘an important contribution to combating impunity in Syria’, he goes on to conclude with a comment that appears gratuitous:

‘we reconfirm our point of view that the White Helmets are brave humanitarian workers. They have been attacked on the ground by the Syrian regime while engaging in purely humanitarian efforts. Those attacks are unacceptable.’ [41]

One might ask why, in a short speech recognizing what is said to be an advance in the international commitment to securing ‘justice and accountability’ for Syria, are the White Helmets singled out for praise? Whatever else may be said for or against that organisation, it is regarded as neither impartial nor independent in much of the wider world community. In fact, the Netherlands’ own Foreign Affairs Minister, Stef Blok, has elsewhere reported concerns that allegations of complicity in war crimes have been made against the White Helmets [42]. The linkage of the MoU to support for the White Helmets is thus conspicuously defiant in the face of criticisms that both OPCW and IIIM have been insufficiently critical in accepting information conveyed by the White Helmets as a basis upon which to make findings. For a nation to throw its weight behind such a controversial organisation is a striking sleight against the principle of international consensus.

It is symptomatic, however, of a more pervasive international breakdown. Indeed, there are serious questions, as noted at the end of Section 2, about whether the war in Syria could have involved actions that constitute war of aggression on the part of foreign powers. Investigation of accusations of war crimes could also foreseeably include looking closely at the role of organisations on the ground that have been created, funded and trained by foreign governments. This could include the White Helmets organisation. The fact that the White Helmets are part of a major information operation established by Western powers, including the UK, is well established [43], and this prompts questions about their sponsors’ influence on their activities on the ground and even potential questions about complicity in them of the states providing support for those actors. These merely add, however, to the already very serious questions that have to be asked about foreign sponsorship of the insurgent forces in Syria, including some organisations that are designated terrorist groups. Furthermore, while potential allegations of the supreme war crime against foreign powers may not currently be on any realistic ‘justice and accountability’ agenda, there is the more immediately demonstrable case to answer regarding the French, UK and US missile attacks of 2017 and 2018, both of which would appear to be in breach of international law. These are particularly significant in the present context given that at least some post hoc justification for them would have been supplied by OPCW reports finding Syria responsible for the chemical events at Khan Sheikhoun and Douma. Yet it now appears to be beyond serious doubt that the Douma pretext was false. For, as recently revealed, OPCW’s own inspectors had foreseen, in June 2018, that their internal reporting of the facts on the ground would not be allowed to see the light of day [44], given that their evidentiary value vis a vis allegations against the Syrian government would have been exculpatory. There is no reason to give greater credence to the Khan Sheikhoun findings [45].

These are not matters that anyone promoting IIIM or the OPCW MoU with it has mentioned as being on their agenda. Yet as long as investigations focus on some allegations with disproportionate attention compared to others, particularly on those that can be made against the very nations keenest on sponsoring that agreement, it can only further weaken the OPCW’s legitimacy in the eyes of the wider world.

A serious objection to the shared objectives of IIIM and OPCW is that these are excessively and prejudicially directed to finding evidence that could justify a Western foreign policy of regime change in Syria. Syria is itself a member of the UN and a signatory to the CWC, and ought to be treated with the respect due to any sovereign nation that is regarded both by the majority of its population [46] and by other nation-states, including some of the largest and most powerful. As I have argued elsewhere, it is bad enough that powerful states try to impose regime change on other less powerful states, but what is more insidious in the kinds of development under discussion here is that they involve measures that would change the rules of the ‘rules based order’ so as to bestow putative legitimacy on such policies. We should be concerned about ‘innovative’ forms of jurisprudence that aim to facilitate the ‘responsibility to prosecute’, by creating less demanding standards of proof and weakening the presumption of innocence, and that also blur the distinction between impartial investigation and targeted prosecution when gathering evidence.

Meanwhile, international trust in and good will towards the UN and the OPCW are further eroded by initiatives like those discussed in this paper. It is evident that there needs to be much more caution about shifting the normative baseline of international law when the direction appears to answer to imperialist rather than cosmopolitan values. But for there to be due caution, there first needs to be awareness of what is happening. In this regard, there is work to be done in the short term by those who have noticed and understood what is going on beneath the veneer of ethical-sounding terms like ‘justice and accountability’ and the ‘protection of human rights’. Those are mere words when not supported by a substantively informed and normatively coherent account of what they really mean and how a given policy is expected to foster them.


The answer provided by this study to the question of its title is unequivocal. With the pretext of pursuing justice and accountability in relation to Syria, not only have such goals not been achieved, but their very meaning has been subverted. Politics has overtaken an important international organisation OPCW, and further infected the overarching international organisation, the UN. Whether or not there is much can be done about this in the shorter term, those of us who can only watch and reflect ought at least to be clear-sighted about what is happening. That means calling out illusions and deception where we find them. In that way, at least a vision, and some grounded understanding of, justice may be preserved.


This version 3 October 2019


[1] The mandate of the CoI was ‘to investigate all alleged violations of international human rights law since March 2011 in the Syrian Arab Republic. The Commission was also tasked to establish the facts and circumstances that may amount to such violations and of the crimes perpetrated and, where possible, to identify those responsible with a view of ensuring that perpetrators of violations, including those that may constitute crimes against humanity, are held accountable.’

[2] Established by the UN General Assembly, in Resolution 71/248, its full title is the ‘International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011’.

[3] For an overview, see Anton Utkin ‘The End of OPCW-UN mechanism. What Stands Behind the Russian “No”?’ (20 June 2018) For an earlier, in-depth, discussion of the Khan Sheikhoun evidence see Paul McKeigue ‘Khan Sheikhoun Chemical Attack: Guest Blog Featuring Paul McKeigue’s Reassessment’.

[4] Oliver Meier (2018), linking to this talk by Mulet: In it, Mulet tells of getting many messages from all sides telling JIM how to do its work, some indicating that otherwise the conclusions of JIM’s work would not be accepted. He also mentions that the international response to every incident or allegation in Syria has had both sides automatically accusing ‘regime’ or opposition. Asked about if he accepts all FFM report he says he has ‘full confidence in the high professionalism of the work that FFM has done’. He does not comment on whether there might have been work that needed to be done but hadn’t been. This would have been worth asking given the admission that Khan Sheikhoun was too dangerous to visit, being under control of the designated terrorist organisation Al Nusra.

[5] Mulet, presenting the JIM report in November 2017 (, stated that ‘while the expert examination of the crater [of the alleged chemical munition] did not rule out the crater could have been caused by means other than an aerial bomb, the mechanism found nothing to prove that the incident had been staged.’ ‘Certain irregularities and inconsistencies emerged in the course of the investigation … however, they were not of such a nature as to change the assessment’. This sounds far rather inconclusive, even evasive, in the context of a report that aims to support any clear attribution of responsibility. Mulet also notes that ‘some parts of the puzzle are still missing’. For instance, the investigation could not show that an aircraft from the Syrian airbase was responsible for delivering the munition that had caused the crater or identify the type of aircraft involved. Given such lacunae in the account, it is unsurprising that those not predisposed to welcome blaming the Assad government found the report hard to accept.

[6] Examples appearing in the first three weeks following the event are linked and discussed in Tim Hayward, ‘Chemical Attack in Douma: a false pretext for escalating war against Syria?’, updated 28 April 2018:


[8] Åke Sellström, ‘The role of the OPCW and the Syrian conflict: How the OPCW can develop its cooperation with states parties’, in Fei Su and Ian Anthony (eds) Reassessing CBRN Threats in a Changing Global Environment. Stockholm: Stockholm International Peace Research Institute (SIPRI), (2019) p.30 [ ]

[9] Scott Ritter, ‘Bias, Lies & Videotape: Doubts Dog ‘Confirmed’ Syria Chemical Attacks’, The American Conservative, 20 June 2019:

[10] ‘Even for the investigation of the Ghouta incident in 2013, the OPCW-WHO mission was able to visit the alleged attack sites for only a few hours, and was under the close supervision of the armed opposition.’  (Paul McKeigue, David Miller, Piers Robinson, ‘Assessment by the engineering sub-team of the OPCW Fact-Finding Mission investigating the alleged chemical attack in Douma in April 2018’, Working Group on Syria, Propaganda and Media, 13 May 2019: )

[11] Details have been redacted here for the time being.

[12] Details have been redacted here for the time being.

[13] McKeigue et al, ‘Assessment by the engineering sub-team’.

[14] James Cockayne, ‘Justice for Syria?’, United Nations University Centre for Policy Research, 21 April 2017

[15] Nikki Haley, ‘Remarks at a UN Security Council Briefing on the Situation in Syria’, 5 February 2018:

[16] Several states echoed this legal analysis, with the representative of South Africa arguing that ‘the draft resolution seeks to oblige the Assembly to do the work of the Security Council’. For analysis of these responses, with links to sources, see David Yaw Danquar, ‘Justice for Syria?’, Legalstone Solicitors LLP, 24 April 2017

[17] Statement of the Head of the Mechanism, Ms. Catherine Marchi-Uhel, UN Gen Assembly, 18 April 2018)

[18] Marchi-Uhel clarifies how IIIM differs from cognate organisations. She explains that evidence gathered by the CoI ‘was information and summaries of the crimes that have occurred, while the work of the IIIM was to gather evidence and information and to prepare case files within an analytical framework that links the material elements of crime to individual criminal responsibility patterns.’ As for the OPCW-UN Joint Investigative Mechanism (JIM), Marchi-Uhel notes that the difference between the IIIM and JIM was that the latter had conducted investigations and submitted public reports without using the principle of individual criminal responsibility.’ (Catherine Marchi-Uhel, interviewed in Asharq al-Awsat, 14 September 2018:

[19] Report of the Secretary-General, Implementation of the resolution establishing the [IIIM] UN Doc. A/71/755, 19 January 2017 (‘Report of the SG’), x 13; Terms of Reference attached to Annex of Report of the SG, x 6.

[20] ‘As indicated by its mandate and Terms of Reference, the IIIM will prioritize the collection of linkage evidence tending to connect individual perpetrators to the crimes committed under all modes of liability, rather than gathering ever more crime-base data. That said, it will also collect information that is both inculpatory and exculpatory.’ (Beth Van Schaack, ‘Innovations in Criminal Law Documentation’, SSRN, p.22

[21] Among the questions to consider is how diligently exculpatory evidence is sought and treated, given the concerns that the relevance of exculpatory evidence found in one case for other similar cases may be underestimated (see Jacob de Zoete et al, ‘Modelling crime linkage with Bayesian networks’, Science and Justice, 55(3), 2014

[22] ‘CIJA is a documentation organisation staffed by veterans of international courts and military intelligence units that is focused less on amassing information about the Syrian crime base and more on collecting linkage evidence to the highest criminal law standard to ensure its maximum utility. In the words of its director, Bill Wiley, it starts “with the organisation, not the incidents” … It produces prosecution -ready files, proto-indicments, and evidentiary briefs on the background, responsible individuals and units, particular crimes, and the structure and functioning of the Assad regime writ large. (Van Schaak, ‘Innovations’). As this quote indicates, CIJA has already been doing a great deal of the work that IIM was created to do, and a large part of the IIM budget is directed to funding that work. IIM is intended to work very closely with CIJA, materially depending on the vast cache of documents that it has garnered via opposition fighters from captured government facilities in Syria, as well as on witness statement procured by support of an organisation with CIJA’s unusually high appetite for risk.

[23] For a critical account, see Max Blumenthal and Ben Norton, ‘This celebrated Western-funded nonprofit collaborated with al-Qaeda to wage lawfare in Syria’, The Grayzone, 19 June 2019

[24] Ben Taub, ‘The Assad Files’, The New Yorker, 18 April 2016

[25] Quoted in Taub, ‘The Assad Files’.

[26] This is from the organisation’s website: ‘SNHR Signs Memorandum of Understanding with International Impartial and Independent Mechanism (IIIM), Beginning with Data-Sharing’ 26 Feb 2019

[27] For a recent critical appraisal of SNHR see Max Blumenthal, ‘Behind the Syrian Network for Human Rights: How an opposition front group became Western media’s go-to monitor’, The Grayzone, 14 June 2019:

[28] Rapp had been promoting innovative ways to prosecute heads of state for many years. Speaking in March 2017, he welcomed the new mechanism as a way of making information gathered by organisations like CIJA more useful for prosecuting international crimes in the conflict(

[29] Iva Vukusic, ‘Efforts to Fight Impunity Globally: A Talk With Stephen Rapp’, International Judicial Monitor, Spring 2016:

[30] The slogan ‘no peace without justice’ is not uncontroversial, and many would think it unwise at least not to give as much weight to reasons why there may be ‘no justice without peace’. There is a of course a whole tradition of thought, and experience, that sees the achievement of peace requiring a setting aside of claims of justice – precisely the forgetting of old accounts to settle, as in the concept of amnesty.

[31] Ingrid Wuerth, ‘International Law in the Post-Human Rights Era’, Texas Law Review, 96: 279-349 (2017), p.295.

[32] Ramesh Thakar, ‘No Longer Fit for Purpose: Syria and the International Normative Architecture’, E-International Relations, 24 April 2018:

[33] Thakar, ‘No Longer Fit for Purpose’.

[34] IIIM was initially funded by voluntary contributions of 13 countries: Andorra, Australia, Belgium, Denmark, Germany, Hungary, Liechtenstein, Luxembourg, The 
Netherlands, Qatar, Slovakia, Slovenia, and Switzerland.

It was ultimately sponsored by 59 countries: Albania, Andorra, Australia, Austria, Bahrain, Belgium, Botswana, Bulgaria, Canada, Costa 
Rica, Croatia, Czechia, Denmark, Djibouti, Estonia, Finland, France, Georgia, Germany, Iceland, Ireland, Italy, Jamaica, Kuwait, Latvia, Liberia, Liechtenstein, Lithuania, Luxembourg, Malta, Maldives, the Federated States of Micronesia, Monaco, Montenegro, The Netherlands, New Zealand, Norway, Palau, Poland, Portugal, Qatar, the former Yugoslav Republic of Macedonia, San Marino, Saudi Arabia, Slovakia, Slovenia, Somalia, Spain, Sweden, Switzerland, Trinidad and Tobago, Turkey, Ukraine, United Arab Emirates, the United Kingdom of Great Britain and Northern Ireland, the United States of America, Vanuatu and Yemen.

[35] Christian Wenaweser and James Cockayne,  ‘Justice for Syria? The International, Impartial and Independent Mechanism and the Emergence of the UN General Assembly in the Realm of International Criminal Justice’, Journal of International Criminal Justice, 15 (2017) 211-230: 213.

[36] Wenaweser and Cockayne, ‘Justice for Syria’, 229.

[37] A little surprised at this striking weakness – in an article in an academic journal – I sought out the authors’ declarations of interest, only to find that Wenaweser is Liechtenstein’s Permanent Representative to the UN and the person who spearheaded the drive to get funding for the IIIM. He evidently speaks from first hand experience when remarking that ‘[t]he use of voluntary funding raised concerns in some quarters, notably among Latin American and Caribbean countries, about the perception of impartiality and the sustainability of the Mechanism.’ (Ibid., 228) He evidently did not reassure those countries.

[38] Ramesh Thakar, ‘No Longer Fit for Purpose: Syria and the International Normative Architecture’, E-International Relations, 24 April 2018:

[39] OPCW Technical Secretariat, ‘Response of the technical secretariat to queries regarding the memorandum of understanding between the organisation for the prohibition of chemical weapons and the International, Impartial and Independent Mechanism’, OPCW Executive Council, EC-91/S/1, 10 May 2019.

[40] Ibid., Annex 1.

[41] Statement by Karel J.G. van Oosterom, Permanent Representative of the Netherlands to the United Nations (Security Council Briefing: Syria (Chemical Weapons) in New York, 5 November 2018:

[42] ‘Minister Stef Blok (Foreign Affairs, VVD) and Sigrid Kaag (Development Cooperation, D66) shut the money down after a critical report from their own officials at Foreign Affairs. According to the report, the Netherlands has not always exercised sufficient supervision over aid projects in the opposition area in Syria. There is a danger that rescue workers and police officers paid by the Netherlands will maintain ties with terrorist organizations such as the Syrian Al Qaeda branch Hayat Tahrir al Sham. … The most serious criticism is directed at the White Helmets … according to the Foreign Affairs report, which was sent to the House of Representatives on Friday, the supervision of the work of the White Helmets is ‘below standard’. There is a risk that Dutch money intended for rescue workers will fall into the hands of extremist groups or be used for illegal trade. It is the first time that a Western government has stated that there are problems with the project.’  The report identifies the following issues:

‘- According to Foreign Affairs, the supervision of the behavior of the rescue workers is ‘below standard’. The monitoring organization, Mayday, based in the Netherlands, is closely intertwined with the Witte Helmen itself. In practice, donors do not understand the difference between the two organizations.

– Mayday wants to spend a maximum of 0.9 percent of its budget on supervising the work of the White Helmets. “That is why there is a lack of independent monitoring of the activities and results of the project.”

– The money for the White Helmets is transferred in cash to the Syrian border or via the hawala system into the country. It is ‘problematic’ that Mayday does not know how much money is being paid via which route. That is why there is a risk that money has fallen into the hands of armed groups. The cash flow can also be used indirectly for illegal trade. Systematic monitoring of the cash flow is missing.

– The White Helmets are active in areas where armed groups are in power that are considered ‘unacceptable’ in the Netherlands. Contact between the White Helmets and local administrators who work with extremist organizations is inevitable.’

(Ana van Es, ‘Nederland stopt steun aan Syrische oppositie wegens gebrekkig toezicht op hulpprojecten; Britse organisatie ontkent kritiek’, de Volkskrant, 18 September 2018, translated by Google:

There does appear to be quite some controversy within the Dutch parliament (see Sonja van den Ende, ‘The Dutch debate on Syria at the parliament, where it was not about war crimes conducted in Syria, but administrative errors’, FreeSuriyah:

[43] A concise summary of research on this matter is included in the WGSPM Briefing Note of 26 June 2019:

[44] An internal note shared among OPCW staff members dated 23 June 2018 stated that: ‘the OPCW report on the alleged chemical attack in Douma Syria on 7 April is currently under review by management. As it is currently drafted, the report indicates a high degree of probability that the alleged chemical attack was staged by an opposition group.’ The note concluded: ‘I predict that the OPCW simply will not be allowed to issue a report that raises any doubts on the pre-judged guilty party.’ (Quoted in Paul McKeigue et al, ‘How the OPCW’s investigation of the Douman incident was nobbled’, Working Group on Syria, Propaganda and Media, 26 June 2019:

[45] This alleged attack was subject to sceptical scrutiny at the time, (see Paul McKeigue, ‘Alternative explanations of the alleged chemical attack in Khan Sheikhoun: a reassessment in the light of the report of the Joint Investigative Mechanism’, 22 December 2017: The revelation of suppressed information about the Douma incident increases reasons for scepticism: ‘We note that the Douma incident was the first alleged chemical attack in Syria where OPCW investigators were able to carry out an unimpeded on-site inspection. Since 2014, OPCW Fact-Finding Missions investigating alleged chemical attacks in opposition-held territory have relied for evidence on witnesses and materials collected by opposition-linked NGOs of doubtful provenance, including the CBRN Task Force, the Chemical Violations Documentation Centre Syria, and the White Helmets. … the finding that the Douma incident was staged, based on a careful on-site inspection, should cast doubt on the findings of these earlier Missions.’ (McKeigue et al, ‘Assessment by the engineering sub-team’.)

[46] For the avoidance of doubt, I should make explicit that it is possible to say the majority of citizens in Syria consider the present government legitimate, without implying any claim that they would not wish for constitutional reforms or a change of government through accountable political processes. In case the difference in political concepts is not clear – which it apparently has not been to some people who have attempted criticisms as a result of their confusion on the point – to say that a government is legitimate is not necessarily to mean that it is democratic. These are quite distinct concepts referring to different kinds of political appraisal. That democracy is not the only form that can be regarded as legitimate has been understood at least since the time of Plato.