Chemical Weapons and Secrecy: a Terrible Combination

Last week’s New York Times article detailing the fact that, between 2004 and 2011, American troops in Iraq “secretly reported finding roughly 5,000 chemical warheads, shells or aviation bombs,” revealed a number of important flaws with the US government’s credibility when it comes to chemical weapons.

To begin with, the story doesn’t demonstrate that Iraq had a chemicals weapons program that justified the 2002 invasion. While the caches of weapons found by American forces are certainly dangerously toxic, they do not suggest that Saddam Hussein’s regime had an active program to develop a chemical warfare capability. The chemical weapons discovered in Iraq pre-date 1991 and appear to have been supplied by the United States and allied countries to support Saddam’s war against Iran.

Then there’s the question of, should we be concerned about chemical weapons falling into the hands of ISIS? The militant group controls the area around the ruins of the Muthanna State Establishment, the locus of Iraqi chemical weapons production in the 1980s, where many weapons were found. The public assessment by US officials is that it’s unlikely that “Sunni militants will be able to create a functional chemical weapon from the material. The weapons stockpiled at al-Muthanna complex are old, contaminated and hard to move.” It’s true that handling these weapons without proper precautions would be extremely hazardous. That being said, it is conceivable that a group like ISIS would throw caution to the wind and find ways to use toxic payloads. That would be a truly horrific consequence of the US playing fast and loose with the requirements of the Chemical Weapons Convention (CWC).

How did the US play fast and loose with these requirements?

As a party to the CWC since 1997, the US is obliged to declare chemical weapons located in its territory and “any place under its jurisdiction or control” within 30 days after joining the treaty. Weapons discovered thereafter must also be reported.

While the US apparently takes the view that Iraq was under its “jurisdiction or control,” at least for purposes of the treaty, the Pentagon only “retroactively informed the Organization for the Prohibition of Chemical Weapons [OPCW] in 2009 that it had recovered more than 4,500 chemical weapons” there, according to the Times. That’s a half-decade after American troops reportedly began finding the weapons in 2004 and coincides with the year that Iraq itself acceded to the treaty and thus – at least technically – could be regarded as taking responsibility for weapons found on its territory.

This extraordinary delay in reporting meant that the OPCW was not involved in securing the weapons or watching over their destruction as required by the treaty. To be sure, the treaty’s strict requirements for counting weapons and sealing storage sites for future destruction may have required tweaking to account for conditions on the ground. But, it is not a defense to claim (as the Pentagon has) that the convention simply did not “envisage the situation in Iraq.” There are ways to work through the treaty regime to resolve unexpected scenarios, as demonstrated in Syria this past year.

A timely declaration of this potentially deadly discovery – when Iraq was under US control and the destruction of the weapons was its responsibility – would have been critical in ensuring that sufficient resources were allocated to its proper handling. It would also have been a very public undertaking. Instead, the job was left undone and few were the wiser.

Moreover, in destroying weapons, the US is required to “assign the highest priority to ensuring the safety of people and to protecting the environment” and to comply with its own “national standards for safety and emissions.” It may be, as the Pentagon claims, that “prompt destruction was dictated by the need to ensure that the chemical weapons could not threaten the Iraqi people, neighboring states, coalition forces, or the environment.” I would be a lot more comfortable with that assessment if it was made by the multi-lateral organization set up to deal with chemical weapons. As it is, it’s not clear how decisions regarding destruction were made nor is the extent to which the factors identified by the Pentagon were in fact considered.  It’s worth pointing out that the Pentagon doesn’t mention whether US national standards – which are among the strictest in the world – were met.

Ironically, at the time that the US was keeping its weapons discoveries in Iraq hidden, it was encouraging countries like Libya and Iraq to accede to the Chemical Weapons Convention.  Less than two weeks ago the US was (rightly) berating Syria for failing to declare chemical weapons facilities.

But if one of the biggest proponents of the chemical weapons ban feels free to skirt the ban’s requirements, it becomes hard to insist on strict compliance by others and undermines trust in the overall regime. 

About the Author(s)

Faiza Patel

Co-Director of the Liberty and National Security Program at the Brennan Center for Justice at NYU School of Law, Former Senior Policy Officer at the Organization for the Prohibition of Chemical Weapons Follow her on Twitter (@FaizaPatelBCJ).