New investigative instruments

Peter ten Hove
30 april 2020

This month:

As the United Nations Security Council remains incapable to find appropriate responses to core international crimes, alternative approaches to further truth, justice and accountability are on the rise.

  1. The Organisation for the prohibition of chemical weapons (OPCW’s) investigation and identification team
  2. UN Board of Inquiry

OPCW

On 8 April 2020, the OPCW published the first report of its investigation and identification team (IIT). The team was mandated by the Assambly of State Parties to the OPCW and investigated incidents in Ltamenah on 24, 25 and 30 March 2017. Earlier, the OPCW fact finding mission had determined that the use or likely use of chemical weapons had occurred on this part of the Syrian territory. Although the IIT is not a judicial body with the authority to assign individual criminal responsibility, it has established facts and has concluded that there are reasonable grounds to believe that:

(a) At approximately 6:00 on 24 March 2017, an Su-22 military airplane belonging to the 50th Brigade of the 22nd Air Division of the Syrian Arab Air Force, departing from Shayrat airbase, dropped an M4000 aerial bomb containing sarin in southern Ltamenah, affecting at least 16 persons.
(b) At approximately 15:00 on 25 March 2017, a helicopter of the Syrian Arab Air Force, departing from Hama airbase, dropped a cylinder on the Ltamenah hospital; the cylinder broke into the hospital through its roof, ruptured, and released chlorine, affecting at least 30 persons.
(c) At approximately 6:00 on 30 March 2017, an Su-22 military airplane belonging to the 50th Brigade of the 22nd Air Division of the Syrian Arab Air Force, departing from Shayrat airbase, dropped an M4000 aerial bomb containing sarin in southern Ltamenah, affecting at least 60 persons.

The report further describes that it could not reach definite conclusions on the chain of command, nor that it received or obtained information on investigations or criminal prosecutions by the Syrian authorities. It also stipulates its challenges such as the inability to access the site of the incidents as well as persons and information located in the Syrian Arab Republic. This, despite the fact that the Syrian authorities are under legal obligations to cooperate.

The report has now been provided to the OPCW’s  executive council and to the United Nations Secretary-General for their consideration, and to preserve and provide information to the International, Impartial and Independent Mechanism (IIIM) and others. The IIIM is to assist in the investigation and prosecution of persons responsible for the most serious crimes under international law which have been committed in the Syrian Arab Republic since March 2011.
Nations.

On 15 April 2020 the Security Council members held a closed meeting on the use of chemical weapons in Syria. This session has likely focussed primarily on the report of the IIT.

UN Board of Inquiry

On the 1st of August 2019, UN Secretary-General António Guterres decided to establish a Board of Inquiry to investigate a series of incidents that occurred in north-west Syria since the signing of an agreement between the Russian Federation and the Republic of Turkey on 17 September 2018. The investigation was to cover the destruction of, or damage to facilities on the deconfliction list and UN-supported facilities in the area. The Board was to ascertain the facts of these incidents and report to the Secretary-General upon the completion of its work.

On 6 April 2020 the Board published a public summary of a 185-page classified report submitted to the UN Security Council. This summary states that in five of seven cases  the government of Syria and/or its allies had carried out an airstrike against sites that were registered as part of the UN’s deconfliction system. This happened although the list had been shared with Moscow and other warring parties in order to prevent attacks.

Albeit a positive step to investigate grave breaches of the Geneva Conventions, the investigation and report have widely been critized for the following reasons:

  1. the limited mandate provided to the board of inquiry;
  2. the limited amount of attacks on civilian infrastructures that have been investigated (last year alone some 70 bombings of hospitals have been documented)
  3. for not naming Russia (as Bashar al-Assad’s most important military and political ally). Russian involvement has been established and documented by various organizations, amongst which the New York Times.