The Original Sin of the Syria Chemical Deal

President Bashar al-Assad is backtracking on his commitment to scrap his chemical weapons program. It’s not only a blow to one of the Obama administration’s rare foreign policy achievements on Syria. Assad’s recalcitrance also highlights a critical flaw — maybe even the original sin — in the U.S-Russian deal to eliminate Syria’s chemical weapons: the lack of a credible threat of action to compel Damascus to cooperate.

The chemical weapons deal negotiated last fall by U.S. Secretary of State John Kerry and Russian Foreign Minister Sergei Lavrov placed responsibility for enforcing the terms of compliance largely in the hands of the Organization for the Prohibition of Chemical Weapons (OPCW).

But the Hague-based watchdog has never confronted a country for violating its disarmament obligations. Its charter spells out no specific punishment for non-compliance. It merely empowers the OPCW’s governing council, where Syria’s allies Russia and Iran hold seats, to take unspecified "appropriate measures" against a country if they conclude it has failed to meet its obligations. The OPCW has never done so.

"This is really uncharted territory," said Jean Pascal Zanders, a chemical weapons expert.

And there’s almost no way to force Assad to move faster. The United States and its allies already threatened to strike the Damascus regime for allegedly using chemical weapons to kill thousands of people; the attack never came. The chances of the United States hitting Assad for merely slow-walking the destruction of those illicit arms is practically non-existent.

"We just frankly don’t have any leverage. It’s not like we’re going to do targeted strikes now," said Phillipp Bleek, a nonproliferation researcher and professor who recently spent a year at the Pentagon working on the Syria chemical weapons issue.

Meanwhile, Assad has all sorts of reasons — and all sorts of methods — to drag the process out for as long as he can. The world’s powers are almost entirely dependent on his forces to move the chemicals. "As long as the weapons are there, there’s a huge incentive to keep him in power," Bleek added.

In September, Assad upended all expectations by agreeing to join the Chemical Weapons Convention and surrender a clandestine chemical weapons program that had provided his government with a deterrent against its nuclear power neighbor Israel.

At the time, there was deep concern that Assad wouldn’t stick to the agreement. One senior Arab diplomat told Foreign Policy, "This all reminds me of Iraq, when Kofi Annan said he has a partner in Saddam Hussein," who then spent years in a cat-and-mouse game with U.N. weapons inspectors. "Do we know we have a partner in Bashar al-Assad?"

Yet in early October, U.S. and U.N. officials heaped praise on Syria, noting that it had met its obligation to declare its chemical weapons stockpile and destroy key components of its program in advance of its deadline. A coalition of powers — including, the United States, Russia, and China — joined forces to transport tons of chemical agent out of the country. "The process has begun in record time and we are appreciative for the Russian cooperation and obviously for Syrian compliance," Kerry said in early October. 

With attention shifting to the diplomatic negotiations in Geneva, and the plight of Syrians starving in battleground towns, the Assad government has stalled the plan to destroy its chemical weapons. A key deadline for exporting its deadliest chemical agents and precursor has come and gone. Syria has missed a November deadline to sign a tripartite agreement with the U.N. and the OPCW governing inspection procedures. This morning, Washington’s envoy at the Hague, Robert P. Mikulak, said that only 4 percent of the most dangerous chemicals — known in Priority 1 chemicals — have been removed from Syria. And Syria is on the verge of missing a second Feb. 5 deadline for the removal of less toxic, Priority 2 chemicals. 

Speaking before the OPCW’s executive council, Ambassador Mikulak said the United States is "deeply concerned" by Syria’s failure to transfer all its chemical agent and precursors to the Syrian port of Latakia, where is it to be shipped to sea for destruction.

"The effort to remove chemical agent and key precursor chemicals from Syria has seriously languished and stalled," he said. "Syria has said that its delay in transporting these chemicals has been caused by ‘security concerns’ and insisted on addition equipment — armored jackets for shipping containers, electronic countermeasures, and detectors for improvised explosive devices. These demands are without merit, and display a ‘bargaining mentality’ rather than a security mentality."

Mikulak that Syria’s delays are escalating the costs for the United States and other international powers who have sent ships to the region to help remove the chemical agents. The MV Cape Ray, which will convert the most toxic nerve agents into ordinary chemicals, has already set sail from Norfolk, Virginia, and will soon arrive in the Mediterranean. "For our part, the international community is ready to go," he said.

Some U.N.-based diplomats said it remains unclear whether Syria’s inability to meet its export deadlines is driven by real security concerns or whether it’s seeking to test the mettle of the United Nations.

One council diplomat suggested the delays were probably linked to ongoing U.N. mediated peace talks in Geneva, a blunt demonstration that Syria still had the ability to backtrack on an initiative that holds value to the United States and the United Nations.

But one diplomat said he expected the Syrian government would not go so far as to halt its participation in the elimination of chemical weapons, saying it would leave them politically isolated and enrage its key supporter, Russia. The Syrians are "teasing us" said one senior council diplomat.

The U.N. Security Council unanimously adopted a resolution in October threatening to impose penalties on Syria if it failed to honor its commitment to destroy its chemical weapons. But after the vote, Lavrov said that Russia would not punish Syria without "100 percent" proof that it is violating its obligations, a standard that most council diplomat believe Moscow will never acknowledge has been met.

That leaves it to the OPCW to address matters of non-compliance. The chemical weapons agency has an elaborate set of procedures, including the right to conduct so-called challenge inspections, to address instance of non-compliance. But it has never invoked those powers. If it did, the OPCW procedures — which call for intensive consultations with Syria — could go on for months.

The OPCW governing council has a long tradition of making decision by consensus, having voted only twice in its history on a major decision. The closest it came to an outright confrontation was in 2012 when the United States and Russia failed to meet their deadline for destroying their chemical weapons stockpiles.

Iran sought to press the OPCW’s executive council to declare the United States in violations of its obligations under the Chemical Weapons Convention. But the executive council decided in a rare vote in the executive council to grant Washington and Moscow extensions.

This time around, according to U.N. based diplomats, the OPCW leadership will likely seek a diplomatic way out of the current crisis.  "They hate to take decision by anything but consensus. It’s the glue that holds this whole thing together."