How Assad Could Twist a Chemical Weapons Treaty to Keep His Poison Gas

Bashar al-Assad has signed onto a decades-old international treaty banning chemical weapons. Now comes the hard part: making sure he doesn’t exploit its loopholes to find ways of holding onto the weapons anyway.

On its face, the decades-old Chemical Weapons Convention seems fairly straightforward. Signatories agree to halt the production of new chemical weapons, allow international inspectors to visit all of its storage sites, and then begin to gradually destroy them. The Organisation for the Prohibition of Chemical Weapons, which is responsible for implementing the treaty, estimates that 57,740 metric tons of chemical agents, or 81.1 percent of the world’s declared chemical weapons stockpiles, have been destroyed since the agreement went into effect in 1997.

The problem is that the treaty wasn’t designed to deal with situations like the current crisis in Syria. To succeed, it will require the full and ongoing cooperation of the Assad government, which is obviously far from guaranteed. If Assad changes his mind or is caught cheating, the treaty’s sole enforcement mechanism is a referral back to the U.N. Security Council, where the chances of getting an agreement authorizing punitive measures against Damascus for its poor behavior are virtually non-existent. For all intents and purposes, the treaty is toothless.

"The Chemical Weapons Convention was created to deal with a very different type of set of circumstances," said Daryl Kimball, the executive director of the Arms Control Association. "It was designed to deal with a country that was willing to renounce its chemical weapons voluntarily and not under coercion, a country where there was no real chance of them being used again, and a country that was stable enough that they could be destroyed safely. None of those conditions exist in Syria."

Kimball is a fan of the treaty who believes it has proven effective over the years and is a far better option than trying to use force to degrade Assad’s chemical weapons facilities. Still, he said, Syria will be an "unprecedented test" of the treaty.

To begin with, the treaty is short on specifics and doesn’t set out any rules for how Syria’s chemical weapons sites should to be secured until the weapons themselves can be destroyed. It doesn’t require guards to be dispatched to the sites or for the facilities themselves to be protected by walls, video cameras, or motion detectors. Damascus, according to the treaty, instead has to only take the measures "it considers appropriate to secure its storage facilities."

"The way this normally works is that inspectors inventory a facility, lock it up, leave, and then come back every six months or a year to do a periodic inspection," said Faiza Patel, a former OPCW senior policy officer who now works at the Brennan Center’s Liberty and National Security Program in New York. "The inspectors aren’t there permanently, so that set-up only works if a country doesn’t tamper with the seals. If it really wants to get back in, and doesn’t care what the inspectors say when they get back, there’s nothing really stopping it from doing so."

The OPCW isn’t entirely powerless. It has sole discretion over the size and composition of its inspection teams, so it can demand that Assad allow in experts from the United States or other nominal Syrian adversaries. If he fails to do so, or blocks the teams from accessing certain facilities, the organization can file a so-called "challenge inspection" notice that refers the dispute to the U.N. Security Council for action. The organization has never had to file such a motion. If it tried to do so with Syria, Assad would be virtually certain to escape scot-free because Russia and China would veto any new effort to authorize force against his government.

The Chemical Weapons Convention, or CWC, is the result of decades of negotiations dating back to the 1960s. To date, 189 countries have agreed to abide by its terms. Israel and Burma have signed but not yet ratified the treaty, while five more — including Syria — had until this week not signed on at all. On Thursday, the United Nations said it had received a letter from Syria formally signaling its intent to sign and ratify the CWC treaty.

According to the terms of the treaty, Syria would then have 30 days to reveal the precise locations of all of its chemical weapons production and storage facilities, a timetable Secretary of State John Kerry has already dismissed as far too slow. Damascus would have to allow international inspectors unfettered access to each of the sites and give the OPCW, the oversight body, a detailed plan for how, and when, it would destroy all of its chemical weapons stockpiles. Syria would have 10 years to do so. That gives Assad plenty of time to seek out ways around the treaty.

"It’s not inconceivable that he adopts the Saddam Hussein playbook from the 1990s — refusing access to facilities, having the inspectors run around the country chasing their own tails — as a way of playing out the clock," said Brian Finlay of the Stimson Center. "The more time that passes, the more the shock of the chemical weapons attack will fade away and the more the momentum for a strike will begin to disappear. It’s clearly in his favor for this stretch out as long as possible."

The Syrian dictator has other advantages. The OPCW personnel can only inspect the sites they know about, so Assad could derail their work by failing to fully disclose all of his production and storage facilities, particularly the smaller and more mobile ones. He also has such large stores of chemical weapons — an estimated 1,000 metric tons — that he could potentially hide away small amounts without being caught. In the end, the United States and its allies would effectively be banking on the good will and continued cooperation of a leader they want to see removed from power.

"The entire treaty depends on the assumption that the country that wants to join actually wants to destroy its chemical stockpiles," Patel said. "If it doesn’t, everything falls away."