6 April 201614:10

Explanatory note

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Unofficial translation

 

I.         Relevance of the initiative

Nowadays the issue of chemical terrorism is extremely topical in the light of repeated use of not only industrial toxic chemicals but also full-fledged chemical warfare agents by the ISIS militants and other terrorist groups in the Middle East. There are reports that terrorist groups have gained access to technologies and infrastructure which could be used to produce chemical weapons, including on an industrial scale. Such actions are becoming increasingly widespread, systematic and transboundary. A reality that can affect any State, chemical terrorism requires the international community to take decisive and urgent steps based on clearly defined and comprehensive international norms.

It should be emphasized that the Russian initiative is not geared to achieve short-term goals of combating chemical terrorism in a certain region. References to the developments in the Middle East are simply an example that proves how urgent this issue is. The Convention we propose, which will, even in the most favorable scenario, take quite some time to be developed and brought into force, should be comprehensive, long-term and global and should not focus on any particular region of the world.

II.        Legal rationale for the initiative

When it comes to chemical terrorism, modern international law has gaps that impede the efficient fight against it.

1.         There is no convincing evidence that norms of international customary law explicitly prohibiting the use of chemical weapons by non-state actors and, in particular, qualifying such actions as an international crime exist.

2.         The Chemical Weapons Convention (CWC) provides for a rather limited number of obligations with regard to criminal prosecution of persons involved in activities prohibited by the Convention for its States Parties. The CWC regime does not live up to today's requirements and the achieved standards in the field of anti-terrorist activities.

This state of play has been referred to time and again in discussions within the Counter-Terrorism Working Group operating under the auspices of the Organisation for the Prohibition of Chemical Weapons (OPCW) since 2001 and its subgroup for the relevant legal aspects. The prohibition "to develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons", set forth in the Convention, applies to States Parties only. The same is true for the fundamental requirement not to use chemical weapons in any circumstances.

Therefore, the CWC does not set forth express prohibition against non-State actors gaining access to chemical weapons and using them. Such prohibition is implied only in Article VII, paragraph 1(a), of the CWC, which obliges each State Party to ban non-State actors on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited under the Convention and put in place criminal punishment for such illegal activity.

Recent developments have shown that terrorists and terrorist groups often use toxic chemicals meant for diverse industrial and domestic purposes as chemical weapons. Among them, for instance, are chlorine and chlorine-containing chemicals, pesticides and various chemical fertilizers. Neither of these chemicals is included in the CWC Annex on chemicals. As a rule, there is no due control over their circulation, end use, consumers and brokers in their acquisition. At the same time, widely known are the cases when such chemicals have been used for charging explosive devices and improvised means of delivery for chemical weapons during hostilities in the Middle East.

Moreover, international cooperation in the CWC framework is limited to interaction between States Parties, whereas the relevant contacts, including those among various international organizations and institutions engaged in international counter-terrorism efforts, are gaining more significance.

The implementation of the CWC has revealed a number of deficiencies in its provisions which were impossible to foresee while the treaty was being developed. In particular, we mean conflict situations when chemical weapons are controlled or possessed by a State Party, and there is a need to take action in order to prevent them from falling into the hands of non-State actors. Another example: again, in a conflict situation, a State Party or a State which is not a Party expresses its readiness to place its chemical weapons under international control to prevent them from being seized by terrorists. Finally, the Convention does not provide clear answer to the question of what to do with chemical weapons recovered from terrorists. Taking into account the experience gained, the international community should establish practical and efficient cooperation mechanisms for addressing these issues.

3.         Amending the CWC to address the existing deficiencies is not the best option, mainly due to a complicated mechanism of adopting amendments to the Convention. Particularly, according to its Article XV, merely convening an Amendment Conference requires the support of 64 States Parties. The consent of 97 participants is required for the adoption of amendments provided that no State casts a negative vote, whereas for their entry into force, the approval or ratification by all States which voted for the amendments is needed.

We deem it appropriate to preserve the CWC integrity and to address the issues of combating chemical terrorism through a stand-alone legally binding instrument.

4.         The international humanitarian law (IHL), by its nature, is only applicable in situations of armed conflict and contains special requirements regarding non-State actors which could be subject to its norms, which makes the IHL inapplicable to broad categories of terrorist activities.

5.         The Rome Statute of the International Criminal Court (ICC) which regards "employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices" as a war crime is not ratified by 69 CWC States Parties. Its norms cannot be considered universal. Besides, it is only applicable in situations of international armed conflicts. The Kampala Amendment that extends the ICC jurisdiction over internal conflicts is ratified by only 30 States, but even for these countries the norms of the Rome Statute are not applicable to violation of internal order and emergence of tension that do not constitute an armed conflict.

6.         Certainly, the UNSC Resolution 1540 is an important universal instrument in the field of non-proliferation of chemical weapons. Touching upon the issues of illegal traffic in chemical materials and their means of delivery it, nevertheless, addresses solely the implementation of national measures with the aim to prevent chemical weapons or its components from falling into the hands of terrorists. It contains general provisions requiring the States not to assist non-State actors in getting access to chemical weapons and their means of delivery, to have effective laws to prevent non-State actors from acquiring chemical weapons and their means of delivery, as well as to have effective internal control over chemical weapons, their means of delivery and related materials.

Thus, in the context of the UNSC Resolution 1540 there is a need for singling out from all non-State actors the most dangerous category, i.e. the terrorists, who, should they acquire chemical weapons and the above mentioned substances, can cause the real damage.

Besides, Resolution 1540 does not cover the current situation with terrorists attempting to get such weapons and facilities for their manufacturing. It appears that the new convention could bridge such serious gaps by including not only chemical weapons, but also hazardous and toxic chemicals, which lie outside the scope defined by the Resolution as WMD-related materials.

The UNSC Resolution 1540 also does not exclude elaboration and adoption of international treaties aimed at its effective implementation. Moreover, in certain cases such treaties could be of high value (one of the recent examples is the Additional Protocol to the Convention on the Prevention of Terrorism of the Council of Europe to address the phenomenon of foreign terrorist-fighters that was adopted to implement the UNSC Resolution 2178 (2014)).

Some partners express the view that the existing gaps could be bridged through elaborating and adopting a new UNSC resolution as a follow-up to Resolution 1540. We do not consider this option as the best one. Firstly, the very "genre" of such a resolution does not allow to resolve all the issues existing in this field. Secondly, addressing disarmament, non-proliferation and counter-terrorism issues through an UNSC resolution should not turn into business as usual. To develop appropriate agreements and decisions by joint efforts of all interested States through negotiations on the proposed Convention would be a more acceptable, efficient and democratic way.

7.         The International Convention for the Suppression of Terrorist Bombings of December 15, 1997, is another legal instrument pertaining to chemical weapons. However, its scope is limited: firstly, to the use of "a lethal device"; secondly, to the specified locations of its use; thirdly, to the intent to cause death, a serious bodily injury or extensive destruction of the objects mentioned in the Convention. Unlike that, the scope of application of the new convention proposed by us would not be limited by such restrictions. We could include other specific provisions as well, e.g. related to the management of the chemical weapons seized from terrorists.

It is also noteworthy that existence of the above mentioned 1997 Convention did not prevent the States from agreeing the separate International Convention for the Suppression of Acts of Nuclear Terrorism in 2005. This precedent is also applicable to tasks of preventing acts of chemical terrorism.

8.         The new convention in the context of chemical terrorism could incorporate some provisions of the international instruments in the field of counter-terrorism which have been approved within the last decade. Namely, it would be appropriate to set out provisions related to the criminalization of the actions covered by its scope of application; definition of jurisdiction; and appropriate level of legal response; implementation of the principle "either extradite or prosecute", etc.

Summing up we can claim with certainty that contemporary international law does not fully cover all the issues related to the fight against chemical terrorism. It would be logical and appropriate to settle them through the proposed convention.

III.       Disarmament dimension of the initiative.  

            Venue – the Conference on Disarmament in Geneva

Certainly, a new topic for negotiations proposed by the Russian Federation is not purely disarmament-related. However, it definitely has a disarmament dimension. It would be right to say that it lies at the intersection of disarmament, non-proliferation and anti-terrorist efforts.

1. As for chemical terrorism, one can speak with a high degree of confidence about the danger of unchecked and large-scale accumulation of arms not by States, that are actors in arms control, disarmament and non-proliferation, but by non-State actors that set the goal to undermine stability and security on global level as well as in specific States and regions. In fact, there emerges a new arms race actor. ISIS acquiring control over industrial capacity for the production of chemical weapons bears witness to this fact.

Moreover, such a build-up of arms prohibited by the international convention clearly undermines the non-proliferation regime because such arms may be supplied through the clandestine networks not only to other unstable countries or regions, but also to other continents. Its recipients could be the existing terrorist organizations cells or entities sympathetic to terrorists.

Therefore, WMD-terrorism is increasingly becoming a disarmament issue and its neglect undermines the WMD prohibitory and non-proliferation regimes and, de-facto, international security and stability. We need to admit that a wider access by non-State actors to chemical weapons components weakens the regime of the CWC and other instruments related to chemical disarmament.

Undoubtedly, this convention would have a disarmament aspect in the sense that chemical weapons and equipment for its production confiscated from terrorists (for the time being it is difficult to determine the scope) would be subject to destruction. This would require meticulous work on the disarmament provisions of this international agreement.

It goes without saying that a whole range of international fora could be suitable for the elaboration of the convention for the suppression of acts of chemical terrorism. However, we prefer the Conference on Disarmament in Geneva.

We believe that the CD agenda originally included the issue of chemical weapons without specifying whether it meant the State-owned weapons or the weapons in the hands of non-State actors (the so-called Decalogue of 1978, summing up the results of the UNGA SSOD I).

We should recall that the agenda contained not only disarmament issues, but also many other aspects related to the maintenance of international security as a whole. In particular, the first agenda (CD/12) of the forum adopted by the Committee on Disarmament (CD’s predecessor) in spring 1979, beyond the issues of nuclear and chemical disarmament and conventional arms, also provided for the discussion of other "collateral" measures in the field of arms control, including confidence-building measures and effective verification methods of the compliance with disarmament obligations. The document had remained unchanged till the CWC was concluded.

Therefore, in accordance with its original mandate the forum was authorized to address a wide range of topical issues of arms control and
non-proliferation. At the current stage, the in-depth examination of the related issues is impossible without taking into account international counter-terrorism efforts.

2.         Moreover, it is at the CD that the CWC itself was elaborated. Under the current circumstances it would be, therefore, only logical to bridge certain gaps regarding chemical terrorism at the CD as well.

3.         Another fundamentally important point. Our proposal to draft a convention for the suppression of acts of chemical terrorism is meant to revitalize the CD itself as its Member States have been unable to agree on the negotiation Program of work for almost two decades. Since late 1990s, none of the combinations of the traditional CD agenda items has been conducive to consensus. In this regard, there is a need for a new topical issue which could rally the Member States of the Conference on Disarmament. We consider a convention for the suppression of acts of chemical terrorism to be such an issue. Its advantage is that it does not affect the interests of any State and, therefore, may play a consolidating role. In this sense it favourably differs from other CD agenda items for each item at this stage has its own opponents.

The continuing search for a compromise within the traditional agenda could certainly become an alternative to the proposed approach, but, as experience shows, it can last forever without any results. In this regard, we hope for the favorable consideration of the Russian proposals by all the partners concerned both about the future of the CD and the growing terrorist-related chemical threat.

We consider our initiative as an invitation to all CD Member States to start negotiation process. We believe that an effective legally-binding instrument on this issue could be developed only through joint efforts of all participating States. We do not regard the proposed elements of a draft convention as exhaustive. Undoubtedly, many partners will be able to come up with supplementary noteworthy ideas in the course of this joint endeavour. In this context we take note of the suggestions that it is desirable that the convention cover both chemical and biological terrorism. Perhaps, it is worth considering. Indeed, developed over 40 years ago the BTWC addresses the counter-terrorism issue even to a lesser extent than the CWC. In particular, it lacks a direct ban on the use of biological weapons. The 1925 Geneva Protocol does not close the gap to the full extent since it applies to States rather than non-State actors. Besides, the BTWC does not qualify biological terrorism acts as an international crime, whereas its provisions on national implementation were compiled, for obvious reasons, without due regard to the terrorism threats that have emerged recently.

Taking this into account we have decided to support the proposal put forward by some States to widen the scope of the draft convention to cover acts of bioterrorism. We are thankful to the authors of this idea which, in our view, would give our initiative even higher “added value”, both with respect to countering the threats of WMD terrorism and for the purpose of recommencing negotiations at the CD in full accordance with its mandate.

 

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