The results are in: nerve gas has again been used in Syria. On June 29, international inspectors from the Organization for the Prohibition of Chemical Weapons (OPCW) officially concluded that the nerve agent known as sarin was used on April 4 in the city of Khan Sheikhoun in northwestern Syria.1 This was a war crime, a breach of international laws banning chemical weapons, and a direct challenge to the OPCW and the Chemical Weapons Convention, which Syria joined under American pressure in September 2013.2

Though the United States has pointed its finger at President Bashar al-Assad’s government as responsible for the attack, the inspectors’ report did not identify the guilty party—nor was it intended to. However, a separate investigation known as the Joint Investigative Mechanism, or JIM, is now working to do exactly that. Yet it is far from certain that the investigators will succeed in identifying a perpetrator, and even if they do, effective follow-up of their conclusions is likely to be blocked in the UN Security Council.

Still, the Khan Sheikhoun investigation matters, because the use of chemical weapons resonates far outside of Syria. Challenges to the global norm against gas warfare tend to provoke international responses in ways that the daily churn of conventional war crimes in Syria do not, and the past four years of peacemaking and great-power diplomacy were strongly influenced by the disputes over Assad’s chemical weapons program. Very likely, Syrian politics will continue to be yanked in unpredictable directions by the chemical weapons crisis—and this autumn, all eyes are on the JIM investigation into the attack at Khan Sheikhoun.

The OPCW Fact-Finding Mission

A treaty-based organization of 192 member countries, the OPCW has been active in Syria since the creation in 2013 of a joint UN-OPCW mission that stripped President Bashar al-Assad’s government of some 1300 tons of chemical weapons.3 Western nations now claim the Syrian government secretly retained part of its stockpile, which Assad denies. The OPCW has not yet ruled on whether Damascus is trying to cheat the inspectors, but it has complained of troublesome gaps in the Syrian narrative and is currently investigating the issue.4

Toward the end of the UN-OPCW joint disarmament mission in 2014, OPCW Director General Ahmet Üzümcü struck a deal with the Syrian Foreign Ministry to also send an OPCW Fact Finding Mission to the country to investigate allegations of continued chemical attacks with chlorine gas.5 It was a group of OPCW investigators working through that mechanism that was called upon to investigate the incident in Khan Sheikhoun when reports broke of a nerve gas attack there on April 4. It has been hard work—indeed, nearly impossible.

Although the Fact-Finding Mission operated both out of Damascus and on the Turkish border, its members were unable to gain access to the actual crime scene in Khan Sheikhoun. The city is located in a war-torn, rebel-held region of northwestern Syria that is controlled by hardline Islamist insurgents, including groups with strong links to al-Qaeda.6 It is extremely dangerous for non-Syrian aid workers or journalists to visit the region, and for a team of OPCW scientists to travel there seems almost out of the question—particularly since the guilty party, whoever that is, would have an evident interest in whipping up violence against them.

Though the OPCW did make preparations for a visit, it did not end up happening. Neither did the group go to the Shayrat air base from which the United States has said the attacks were launched.7 Such a trip would probably have been safe, but it would not be likely to provide much information pertinent to the Fact-Finding Mission’s mandate which (per the terms agreed with the Syrian Foreign Ministry) does not allow the OPCW to investigate who carried out an attack with chemical weapons—the investigators are only allowed to determine if it happened.

On the other hand, the limited mandate made for a much easier investigation. Piecing together exactly what happened by a remote investigation that depended on partisan accounts would be hard, but giving a yes or no answer to the question of whether a chemical weapon was used is a more straightforward endeavor. And, as it turned out, it was one of those rare issues where Syrian loyalists and opposition members could agree.

As documented in the Fact-Finding Mission’s report, the inspectors received evidence and testimony from a wide range of Syrian and non-Syrian sources, including opposition groups, Assad’s government, and foreign nations on both sides of the conflict. While they found striking and irreconcilable discrepancies in testimony provided by witnesses contacted through the Syrian opposition and those contacted through the Syrian government, both sides said they had found evidence of nerve gas use and offered environmental samples from Khan Sheikhoun that tested positive for sarin.8 “When all the evidence and information from all available sources is put together, there is no disagreement that Sarin was used as a chemical weapon in Khan Shaykhun,” OPCW Director-General Ahmet Üzümcü told the OPCW Executive Council when it convened to discuss the report on July 5.9

Even Russia, which has been hostile to the OPCW investigations ever since they produced evidence that helped incriminate Assad’s government for chlorine attacks committed in 2014 and 2015, agreed with Üzümcü’s assessment.10 “After reading the [Fact-Finding Mission] report on Khan-Shaykhun, one thing is clear: sarin or a similar agent was used there,” said Russian OPCW representative Alexander Shulgin according to an official transcript of his remarks. “This is confirmed, among other things, by analysis of the samples obtained from the site of the incident by the Syrian authorities. However, the main question remains unanswered—who, under what circumstances, and in what manner used this toxic substance.”11

The Joint Investigative Mechanism

The circumstances of the Khan Sheikhoun incident remain poorly understood. Although many have already drawn their conclusions about who was behind the release of toxic gas on April 4, it will be very difficult to clear up lingering question marks to the extent that a firm international judgment can be delivered. Doing so will be the responsibility of a separate group of international investigators known as the Joint Investigative Mechanism. A joint UN-OPCW project, it works independently of the OPCW’s Fact-Finding Mission, essentially picking up where the latter’s work ends.

From its creation in 2015 through 2016, the JIM was under the leadership of the Argentinian diplomat Virginia Gamba.12 In late April 2017, her place was taken by Guatemalan diplomat Edmond Mulet,13 who is assisted by the two other members of the JIM’s Leadership Panel: Malaysian diplomat Judy Cheng-Hopkins, who runs the political component of the JIM from offices in New York, and the Swiss chemical weapons expert Stefan Mogl, who will handle the JIM investigation’s technical side at the OPCW labs in the Netherlands. Mulet, Cheng-Hopkins, and Mogl are assisted by a team of twenty-three additional staff with relevant expertise, a JIM spokesperson tells me.14 Several members of the staff have previous experience of working in Syria. For example, Mulet has involved Åke Sellström, the Swedish chemical arms expert who ran the UN’s first chemical weapons investigation in Syria in 2013.15

The investigators are well aware of the difficult task they face, and that their investigation needs to remain untainted by political arguments and pressures. “The notion that this was Assad lives in everybody’s mind and in the world of propaganda,” Sellström told a Swedish reporter earlier this year. “But to be able to convict someone in a judicial process you will need to produce evidence of who actually did it and secure it in such a way that it can stand up to legal scrutiny in, for example, the International Court of Justice in The Hague.”16

How the JIM Came to Be

Unlike the OPCW Fact-Finding Mission, which exists because of an agreement between the OPCW and the Syrian government, the JIM owes its existence to the United Nations. The unanimously adopted UN Security Council resolution 2235 created the JIM in August 2015 in response to previous OPCW Fact-Finding Mission reports documenting the continued use of chlorine gas as a weapon.17

The fact that Russia voted for the creation of the JIM surprised many observers at the time, even if it took long and hard negotiations to get Moscow to agree. The Russian government had been dismissive of the Fact-Finding Mission reports, which (although they were not allowed to draw conclusions from that material) had included evidence that seemed to point in the direction of Assad’s government. For example, some witness testimony and video footage indicated that chlorine-filled munitions had been dropped by helicopter.18 Many had therefore assumed that Moscow would veto any attempt to clarify who was behind the attacks, and were surprised when the Russian government voted in favor of the JIM at the Security Council in August 2015, thereby allowing the resolution to be unanimously adopted.

The chemical weapons expert, arms control consultant, and former senior OPCW official Ralf Trapp was not among those surprised. “There was an interest certainly on the Russian side to get attribution into the picture,” Trapp told me in an interview in May. “If you recall, the final Sellström report from December 2013 contained some reports of sarin having been used against government troops. Also, Russia did its own investigation in 2013 and attributed sarin use to terrorists,” he said, referring to an incident in Khan al-Asal where the Syrian government had demanded a UN investigation.

“It needed investigation, and you couldn’t quite tell what the outcome would be,” Trapp told me, noting the murky nature of the conflict and the fact that, as opposed to sarin, attacks that involve chlorine gas are not technically difficult to arrange. “I think the Russians went along, thinking they could influence the outcome in such a way that there would be a finding of terrorist use of chemical arms, or that they could at least throw enough question marks at the conclusion,” Trapp said. “In many of these investigations it is very difficult in advance to know what the result will be.”

Others see Russia’s approval of the JIM as a cynical bid to gain time. “I think it was a way of postponing the inevitable,” argued a person associated with the Syrian chemical arms inspections who spoke to me earlier this year. “You keep playing the game until a time comes when you feel that now we can perhaps get away by changing the goalposts, but you can’t disrupt the game. Blocking the JIM would immediately have raised the question of why—why can’t you allow an independent investigation? Maybe they also thought that the UN, given its habit of always playing safe, would come up with something safe and wishy-washy. It could very easily have ended up that way.”19

Blocking the JIM would immediately have raised the question of why—why can’t you allow an independent investigation?

In fact, it took less than a year for the JIM to find itself on a collision course with Moscow. In summer 2016, the JIM determined that Assad’s forces was guilty of using chlorine on at least two occasions, later adding a third. Russia refused to accept the results, and since then Russian diplomats and state media outlets have showered the UN and OPCW investigations with complaints—some quite reasonable,20 but some clearly in bad faith.21

The affair led to a showdown in the Security Council in February 2017, in which Russia and China vetoed a draft resolution backed by a majority of the council membership. The draft would have drawn on the JIM reports, previous UN resolutions, and a 2013 Russian-American agreement to impose Chapter VII sanctions on the Syrian government. This was where Moscow drew the line, apparently preferring to veto any resolutions that would run counter to Assad’s interests rather than negotiate for milder sanctions or engage substantively with the JIM’s conclusions. The veto tore up a series of Russian-American deals and international arrangements over how to regulate the Syrian chemical weapons issue, which had been gradually and consensually put in place from 2013 to 2015.22 It also made the United States and the EU move unilaterally to impose sanctions outside the UN framework, in addition to those already in place.23 Indeed, by stripping away Security Council enforcement, the Russian-Chinese veto paradoxically seems to have contributed to the U.S. decision to strike Assad’s forces in response to the Khan Sheikhoun attack a few weeks later without even attempting to engage Russia or awaiting a JIM investigation (though U.S. President Donald Drumpf likely had other motives, too, for wanting to flaunt his military strength).24

There is no reason to believe Russia has altered its position since then. In other words, though the JIM’s investigations into alleged chemical weapons use in Syria will continue, it is unlikely that its conclusions will be acted upon—at least not if they indicate that the nerve gas attack in Khan Sheikhoun was carried out by Bashar al-Assad’s forces. And it is far from certain that the investigation will get even that far. Although the JIM’s final report on Khan Sheikhoun is scheduled for release in October, there are a lot of bumps on the road from here to there.

“A Highly Politicized Environment”

At a press conference after his presentation to the UN Security Council, JIM head Edmond Mulet warned about the threats facing his investigation.

“We find ourselves in a highly politicised environment,” Mulet said, complaining that that governments were taking sides based on political arguments and were constantly interfering to tell his investigators how to work. “I appeal to all, as I did right now in the Council, to let us perform our work in an impartial, independent and professional manner.”

While Mulet’s criticism of international pressures seemed to be aimed at both sides of the dispute, he also subtly noted that his mission was running into resistance from the Syrian government in the Khan Sheikhoun case. Commenting on the persistent demands of the Syrian and Russian governments that inspectors must visit Khan Sheikhoun and the Shayrat air base, he said that the JIM team would certainly try, though it ultimately depended on “security concerns and security issues.” However, Mulet then took the opportunity to highlight the Syrian government’s reluctance to provide information about events on April 4. Before the JIM could consider a visit to either site, he said, Damascus would have to respond to the JIM’s pre-inspection questions, which it had thus far failed to do. “I need information about the flight logs in al-Shayrat, the movements around al-Shayrat,” the JIM leader said. “I need the names of the people we will be interviewing—military commanders and government officials—and also some information that the Syrian government could provide to us in order to conduct our work.”25

According to a diplomatic source, Mulet was even more blunt in his presentation to the Security Council, where he reportedly accused Damascus of not cooperating in a satisfactory manner.26 According to Foreign Policy, Mulet told the Security Council that the Syrian Foreign Ministry had refused to issue a visa for the JIM’s liaison officer in Damascus, thereby preventing the inspectors from deploying to work in Syria.27 This seems to be correct: a JIM spokesperson confirmed in an e-mail that there was still no liaison in place in Damascus at that point,28 and Foreign Policy’s account is corroborated by other sources.29

The delay caused by the lack of a visa is no small matter. Time is of the essence, not merely because it gets harder to investigate the Khan Sheikhoun massacre as memories fade and evidence is corrupted, but also because the JIM’s mandate runs out in November—just weeks after the scheduled release of the JIM’s final Khan Sheikhoun report. At that point, the JIM’s continued operations will be at the mercy of a Russian veto.

The investigators now have less than four months left to study the vast material collected by the Fact-Finding Mission, conduct additional investigations inside Syria or abroad, compile and analyze the results, test their conclusions, and write their report. To those who believe Syrian authorities ordered the Khan Sheikhoun attack, deliberate delays like these are an indication that the Russian and Syrian governments are trying to stall the investigation in order to get closer to the mandate deadline. Of course, Russian diplomats reject this.30 The Syrian government has not responded to requests for comment.

Fears of an October Surprise

There’s certainly a risk that the inspectors will stumble on the finish line, and there are also those who fear that the guilty party will try trip them up. The JIM is a relatively small mission and it arrives late in the game. In interviews, several diplomatic sources and chemical inspection experts have told me that the JIM will be forced to lean heavily on evidence already collected by the OPCW Fact-Finding Mission.31

Given the Fact-Finding Mission’s near-exclusive reliance on remotely provided samples, witnesses brought to their attention by parties to the war, and open-source evidence, there’s clearly a potential for manipulation. Much of the evidence collected by the OPCW came from opposition-connected organizations, including the Syrian American Medical Society (SAMS), the Syrian Civil Defense (SCD, also known as the White Helmets),32 and the Chemical Violations Documentation Center in Syria (CVDCS), but the Syrian government also contributed witnesses and samples at later stages. The OPCW was wary of relying on any one side, but the convergence of evidence from both sides played an important role for the Fact-Finding Mission’s decision to wrap up its investigation and file the report on June 29.

If an actor who fears being exposed by the JIM were to suddenly reveal new information that spectacularly discredits evidence planted at previous stages of the investigation, or throws out a major new lead that the JIM members will lack time to pursue under their current mandate, it could disrupt the JIM’s work, damage the credibility of its report, or at the very least undercut public faith in the Khan Sheikhoun investigation. Such machinations might sound outlandish, but they have occurred before in international investigations that implicated Syria.33 And while a scandal of this kind wouldn’t stop the JIM from ruling on the issue, it could certainly force the investigators to rework their conclusions in the last minute, weakening their argument and causing a crisis of confidence in the results, which would in turn be exploitable by whomever ends up being fingered as the guilty party.

A New Showdown in the Security Council?

What would happen if the JIM report concludes that Bashar al-Assad’s government was behind the attack? It wouldn’t lead to another U.S. air strike. As described above, the United States has already attacked Assad’s forces in response to the Khan Sheikhoun incident, without waiting for the JIM investigation to point out the perpetrator. “Independently, the US has obviously made its own determination, and our immediate reaction was the strike on the Shayrat air field,” a U.S. State Department official told me last month. If Assad is identified by the JIM, too, “the UN Security Council would be a possibility and additional sanctions are an available venue.”34

However, the Security Council isn’t likely to be a functioning instrument for those states who want to punish the Syrian government for chemical weapons use. While Western governments are likely to pursue a Security Council resolution anyway, simply to force Russia (and possibly China) to suffer the discomfort of using its veto powers in defense of nerve gas, UN action clearly couldn’t lead anywhere without Moscow’s acquiescence.

The Security Council isn’t likely to be a functioning instrument for those states who want to punish the Syrian government for chemical weapons use.

More likely, therefore, Western states would end up responding to a JIM identification of the Assad government by unilaterally imposing their own sanctions on Syria and/or Russia. Coming under American or EU economic sanctions is not a pleasant experience,35 but such a move would likely have a little direct impact given that both countries have already been subject to Western sanctions for many years. Indeed, Damascus did not bat an eye when Washington and Brussels rolled out new sanctions orders in connection with the Russian-Chinese veto this spring, and again after Khan Sheikhoun.

Another possible venue would be to use a JIM identification to encourage or strengthen a war crimes prosecution. The UN General Assembly, where Russia does not hold veto powers, recently created a special mechanism to gather evidence against both the Syrian government and its enemies, which is intended to facilitate future war crimes trials.36 Of course, the Syrian government is unlikely to cooperate with any foreign or international war crimes process, so this, too, would be mostly a symbolic measure.

In the seemingly less likely event that the JIM were to conclude that Syrian rebels or some other actor were behind the Khan Sheikhoun incident, it would be an even bigger upset, since it would for the first time mean that Russian-Syrian-Iranian claims about rebel false-flag operations had gained the support of independent investigators. It seems safe to assume that Assad’s allies would then quickly forget their criticism of the investigators’ methodology and move to the Security Council, in the hopes of forcing the United States or its allies to cast a veto similar to the Russian-Chinese one in February 2017.

In short, any firm identification of the perpetrator of the Khan Sheikhoun killings could trigger another battle in the UN Security Council. But there may never be such an identification. The June 29 Fact-Finding Mission report gave very little reason to think that the perpetrator of the Khan Sheikhoun massacre can be pinpointed with any certainty.

The JIM will of course conduct additional investigations. Importantly, the JIM inspectors have more freedom to shape their mission and pursue leads than the Fact-Finding Mission, which was constrained by its narrow yes-or-no mandate. If its liaison visa is ever approved, it is also possible that the JIM will be able to conduct in-country inspections in ways that the Fact-Finding Mission was never able to do. But realistically speaking, the most important element of an investigation—a visit to the crime scene in Khan Sheikhoun—may simply be too dangerous to try, not least because the only thing we know with certainty is that at least one party to the conflict has an interest in turning such an expedition into a violent tragedy.

Quite possibly, therefore, the JIM could announce in October that while the investigators have found strong leads that point hither or thither, their conclusion is that too many doubts remain to say anything certain about the identity of the perpetrator.

And, to be honest, a murderer getting off the hook—wouldn’t that be the most Syrian ending of all?

 

Notes

For a background to the creation of the Fact-Finding Mission, see Aron Lund, “Red Line Redux: How Putin Tore Up Obama’s 2013 Syria Deal,” The Century Foundation, February 2017, https://tcf.org/content/report/red-line-redux-putin-tore-obamas-2013-syria-deal. To see all Fact-Finding Mission reports, see the OPCW website, https://www.opcw.org/special-sections/syria/fact-finding-mission-reports.

[This article was originally published by The Century Foundation.]