Chemical Weapons allegations and Russia’s invasion in Ukraine

In the course of its war of aggression against Ukraine, Moscow has repeatedly accused Kyiv of planning to stage "false flag” operations involving chemical weapons. The Kremlin alleges that Ukraine is doing this in order to put the blame for a chemical weapons use on Moscow. In a newspaper article from mid-July, Russian Foreign Minister Sergei Lavrov placed the current chemical weapons allegations within a narrative that portrays a conspiracy by Western and other states against Russia. This narrative is so diffuse and all-encompassing that it hardly seems refutable in its entirety. This makes it all the more important to analyse and evaluate its central building blocks that are important from a disarmament perspective, such as the accusations that Ukraine is preparing to use chemical weapons.

Ukraine has consistently and persistently rejected all these Russian accusations. At the same time, Kyiv, for its part, accused Moscow of preparing the ground for its own use of chemical weapons by disseminating these false allegations. Verifiable evidence for the respective claims has yet to be made available in public. Neither party has so far activated international mechanisms to have their respective complaints independently investigated.

Without substantive evidence, however, and as long as they go unchallenged, unrebutted or unaddressed, such allegations could have negative reverberations for the set of rules that prohibit chemical weapons under international law. A failure of States to respond to such allegations can undermine the trust in the Organisation for the Prohibition of Chemical Weapons (OPCW) and the legitimacy of the mechanisms under the Chemical Weapons Convention (CWC), as its ability to investigate and sanction treaty violations could be called into question. It could also adversely affect the practical work of the OPCW. Conversely, if the international community were to unite in finding effective responses to real or fabricated accusations of treaty violations, this would protect the norm against chemical weapons.

The Russian accusations fit into a pattern of behaviour that had raised doubts about Russian support for the CWC already in the past. For example, Russia had attempted to undermine the OPCW's authority to investigate Syrian chemical weapons use, through a disinformation campaign.

A deliberate release of a toxic substance "which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals" is considered a use of a chemical weapon under the 1997 CWC. This applies to the use of classical chemical weapons manufactured for military use. But it also applies to the deliberate release of poisonous substances by other means, such as the bombardment of civilian chemical facilities, provided that this was done with the intention of achieving the effect cited above. Both Russia and Ukraine are parties of the CWC and thus bound by the comprehensive prohibition of chemical weapons. Furthermore, the use of chemical weapons is prohibited for all states under customary international law.

What specifically are these accusations about?

In several letters to the OPCW, Moscow has accused Ukrainian forces of trying to release chemicals in the Donbass and other regions in order to then blame Russia. Russia claims that Ukrainian "rebels" had exploited Russian attacks on chemical plants, such as the Azot chemical plant in Severodonetsk, to release dangerous chemicals using explosive charges. The Ukrainian "nationalists" alone had reason for such actions, which entailed considerable risks for people and the environment, according to Moscow’s accusations. Ukraine, the Kremlin claimed, had been supported in these actions by Western states and especially the USA.

Ukraine, on the other hand, accuses Russia of making false claims in order to prepare its own chemical weapons operations or to justify its own conventional attacks. Thus, Ukraine argues that Moscow itself were planning so-called "false flag" operations, i.e., operations carried out in order to deliberately create the impression that another party or parties were responsible for them. Kyiv also asked the OPCW to closely monitor all "violations of the CWC by Russia in Ukraine", most recently in a note verbale dated 28 July 2022.

Russian attacks on chemical facilities had already led to the release of dangerous chemicals, Kyiv alleges. Furthermore, Russia had on several occasions since 24 February 2022 "used chemical weapons against units of the Ukrainian armed forces", according to a Ukrainian accusation made on 11 May. Media research suggests that these allegations relate to the following events, among others: the Ukrainian Pravda reported that British intelligence reports indicated that on 11 April, Russian troops had used phosphorus munitions with "high probability" in the battle for Mariupol. An incident of 1 May near Mykolaiv, reported in a Ukrainian government press release, is believed to have been a fire at a nitrogen fertiliser warehouse triggered by Russian bombardment. On Twitter, there appeared reports of the bombing and subsequent explosion of an ammonium nitrate warehouse on 11 May near the town of Izyum. No suitable publicly available reports could be found on the allegation of an operation on 7 May.

If the unquestionable intent of these attacks was to harm humans or animals through the toxic effect of the chemicals released, this would constitute a violation of the CWC. Such an intent, however, may be difficult to prove. On the other hand, releases of chemicals without this intention are not covered under the CWC, and neither are uses of chemicals intended for other military purposes if their effects do not depend on the toxic effects of the substances used. Examples of this would be toxic rocket fuels, the use of phosphorus munitions to create smoke screens or the use of defoliants (see the use of "agent orange" in the Vietnam War) to create a clear field of vision for firing at enemy forces.

The deliberate destruction of civilian infrastructure of the chemical industry as a method of warfare could, however, violate other international norms and rules, as could attacks on civilians: The Geneva Conventions and the Statute of the International Criminal Court (ICC) prohibit, among others, the destruction of non-military targets unless proportionate to the military objectives sought. They also prohibit deliberate attacks on exclusively civilian targets, and the use of asphyxiating or poisonous gases and other substances with such properties. However, the Rome Statute of the ICC does not specify a particular class of weapons or agents that fall under this definition. While neither Russia nor Ukraine have acceded to the ICC Statute, Ukraine has accepted its jurisdiction. The use of incendiary weapons against civilians and of other conventional weapons capable of causing excessive suffering or indiscriminate effects is also regulated in the Third Protocol as well as the main text of the UN Convention on Certain Conventional Weapons; Russia and Ukraine both are parties to the relevant agreements.

Public domain.

Do the Russian allegations represent a new development, and what incidents are known so far?

The latest Russian allegations are part of a series of similar accusations that Moscow had already spread in the years before its attack on Ukraine in February 2022. For example, Russian Defence Minister Sergei Shoigu claimed in a speech on 21 December 2021 that unidentified chemical substances had been delivered to eastern Ukraine in order to carry out "provocations". Also, in December 2021, the Russian news agency TASS reported that the USA had delivered a consignment of botulinum toxin with associated antidote to Ukraine. Since the Russian invasion of Ukraine on 24 February 2022, the allegations have become more serious and specific. The botulinum story, for example, was rehashed in the summer of 2022 with reports of alleged poisonings of Russian soldiers with this neurotoxin. Ukraine dismissed this by pointing out that the cause was more likely poisoning with expired canned meat.

Releases of chemicals from facilities where hazardous substances are produced, used or stored had occurred already before 2022. As early as 2017, the open-source investigation organisation Bellingcat published an overview of all Ukrainian chemical plants attacked by Russia since the annexation of Crimea in 2014. This included, for example, the coke plant in Avdiivka which produces, among others, sulphuric acid, ammonium sulphate, phenolates and other toxic substances; the Novhorodske phenol factory which uses naphthalene, phenol and other hazardous chemicals; several water treatment plants near Donetsk, one of which alone stored 300 tonnes of liquefied chlorine; and the Mikhailivka transformer station which contained a total of 3.2 tonnes of mercury. In addition to the incidents already mentioned above, a continuously updated OPCW compendium of relevant correspondence from States Parties includes, for example, the shelling of a nitric acid storage facility in Rubizhne on 4 April 2022 and repeated attacks on the Azot factory in Severodonetsk.

How has the international community reacted to the allegations?

The OPCW is closely monitoring the developments in Ukraine and documents the mutual accusations related to chemical weapons in the above-mentioned compendium. This compendium has meanwhile grown to more than 100 pages. On 10 June, the Organisation itself rejected Russian accusations made the previous day that claimed that it was helping to prepare Ukrainian "false flag" operations by having OPCW experts on standby to verify the use of chemical weapons. At the time, the Technical Secretariat called on Moscow's representative to the OPCW to refrain from such "baseless allegations”.

In addition to Ukraine, the EU, the United States, and the UK have also officially and comprehensively refuted the Russian allegations within the framework of the OPCW; these statements, too, are included in the compendium. Speaking for the EU, France expressed "deep concern" already on 3 March about information that Russian forces could be preparing "false flag" provocations involving chemicals. This could include the destruction of industrial chemical facilities, thus exposing the Ukrainian population to the risk of exposure to dangerous chemicals. The EU condemned the "Russian disinformation campaigns" and "baseless allegations" by Russian government officials regarding chemical provocations in Ukraine.

During the Executive Council meeting in March, a group of 49 States Parties of the CWC objected to the "false suspicions" raised by Russia against Ukraine. On 11 March, the United States also rejected as completely false the accusations "that alleged radical groups under the control of American services were preparing possible chemical weapons operations in Ukraine". Furthermore, NATO Secretary General Jens Stoltenberg warned in March 2022 that Russia's accusation that Ukraine had biological weapons could be used as a pretext for Russian chemical weapons attacks.

On 1 June, London rejected as "baseless" Russian insinuations that the UK itself supported "chemical provocations" by Ukraine. Referring to the war against Ukraine and the activities of Russian allies in Syria, London also noted that Russia had demonstrated "its willingness to disregard the essential foundations of the CWC".

Members of the Non-Aligned Movement (NAM) and several developing countries, on the other hand, have taken a less clear position. For example, on 8 March, NAM members represented at the OPCW and China expressed their "deep concern" about any attempt to accuse a CWC State Party of chemical weapons use "on the basis of unsubstantiated allegations made by media reports or any other open sources, including non-governmental entities". This can be read as a criticism of Ukrainian accusations directed against Russia, as well as of the public debate in the West on chemical weapons allegations. On principle grounds, Beijing criticises Western states for including information collected and disseminated by non-governmental institutions in official assessments of other states' treaty compliance. The wording is also reminiscent of Russian accusations that Western states base their own positions on information provided by civil society groups.

India takes a more moderate position and avoids a clear stance. Thus, on 8 March, Delhi expressed its conviction that "any allegation of use of chemical weapons must be dealt with strictly as per the provisions and procedures laid down in the [Chemical Weapons] Convention" and that relevant "concerns must be addressed through consultations and cooperation" among all parties concerned.

To this end, provisions of the CWC as well as additional ad hoc instruments within the framework of the CWC can be used. Examples would be those established by the international community to investigate chemical weapons attacks in Syria.

Which reaction would be possible?

The CWC offers several ways to determine whether chemical weapons-related allegations are based on factual evidence. Normally, the OPCW's routine inspections, among other things, serve to demonstrate that Member States are in compliance with the treaty. However, such measures are currently severely hampered in Ukraine by the war. The lowest level of other compliance assurance mechanisms involves a bilateral exchange of information between the states concerned, in accordance with Article IX of the CWC. However, in view of the current war situation and the lack of confidence in Russia's willingness to cooperate, the political preconditions for using this procedure to establish the truth seem to be lacking.

Clarification can also be sought through the OPCW Executive Council. This body, in which 41 CWC States Parties regularly take decisions on the implementation of the CWC, can appoint a team of experts to review all available information on the case in question. While Ukraine has not formally initiated this clarification procedure, it has repeatedly asked the Executive Council to monitor the situation closely, and has also recalled its right under the CWC to request assistance and protection in case of a threat of use of chemical weapons or an actual chemical weapons attack (see below).

Another important fact-finding mechanism of the CWC, albeit one that so far has not been used, is challenge inspection - a special investigation to look into possible treaty violations. The procedure is governed by Article IX of the CWC and Part X of the Verification Annex. Russia, whilst providing relevant evidence, could request the OPCW to investigate its allegations against Ukraine regarding the possible preparation of "false flag" attacks. Ukraine or any other CWC State Party could also activate this mechanism in an attempt to determine the veracity of Russia’s allegations.

If there were concrete indications that chemical weapons had actually been used, the CWC would have another as yet unused instrument at its disposal: a mechanism for investigating suspected chemical weapons use under Articles IX, X and Part XI of the Verification Annex.

In order to plan and prepare for such contingency operations, the OPCW has established a Capacity-Building and Contingency Planning Cell. It also conducts targeted trainings and exercises. The Organisation is in the process of expanding its own analytical and forensic capabilities, including in designated laboratories of Member States and with the OPCW's own Centre for Chemistry and Technology, which is under construction. The OPCW Situation Centre provides round-the-clock support to teams in the field. While conducting a challenge inspection or other investigation in the Ukrainian war zone would not be an easy task, the OPCW's work in Syria has demonstrated that it is quite capable of conducting fact-finding and other special missions in extremely challenging circumstances and in an ongoing war situation.

The example of Syria has also shown that the OPCW can adapt to novel situations and develop new, tailored tools. In addition to conducting a challenge inspection or investigation of an alleged chemical weapons use - both of which would have to be requested by a CWC State Party for the OPCW to act - ad hoc instruments analogous to the Fact-Finding Mission (FFM) or the Investigation and Identification Team (IIT) for Syria could thus theoretically also be deployed to Ukraine to investigate possible chemical weapons uses. The OPCW had created these two instruments in order to be able to make reliable assessments under the conditions of the Syrian civil war as to whether chemical weapons were used, or to identify those responsible for such war crimes. CWC parties could also mandate the IIT to identify those responsible for chemical weapons attacks in other states, such as in Ukraine.

Both the OPCW and the States Parties may also provide assistance to Ukraine under Article X, in the area of assistance and protection against a possible chemical weapons attack. The OPCW and Ukrainian representatives and parliamentarians have already discussed such steps. Furthermore, Ukraine has already requested bilateral assistance from States Parties in the protection against chemical weapons on 18 March, making reference to Article X, paragraph 3 of the CWC. The OPCW could also mobilise assistance from Member States under Article X, for example in the form of providing protective equipment such as detectors, respirators and protective clothing, means for decontamination, and medical countermeasures. The Director-General could release emergency assistance to victims of chemical weapons use and, by conducting an investigation of alleged use of chemical weapons, determine whether such weapons were actually used and, if so, by whom (see above).

Why would clarification be important?

Although there is no reliable publicly available evidence for the Russian accusations, it is important to counter them resolutely and assiduously. False accusations can weaken the international control of chemical weapons if they are repeated again and again (as Russia does), mixed with half-truths and incorporated into a narrative that calls into question the bona fide intentions of other parties. Clear and consistent stances are also important to make it plain that any use of chemical weapons would be punished. Finally, it is a matter of isolating internationally those states whose discernible aim it is to put sticks in the wheels of multilateral institutions such as the OPCW in order to further their own interests. How robust norms such as the chemical weapons ban depends not only on how often and severely they are violated, but also on how united the international community responds to such breaches.

How should Russia's behaviour be assessed?

While Russia has repeatedly defended its ally Syria against the OPCW's legitimate investigative work on Syrian treaty violations since 2015, Russian accusations in the case of Ukraine are directed against a CWC State Party whose treaty compliance the OPCW has never called into doubt. In contrast, 55 OPCW member states have addressed a number of open questions to Russia, such as in connection with assassination attempts which employed novel nerve agents, so-called Novichoks. When it joined the CWC in 1997, Russia had declared the world's largest CW stockpiles to the OPCW, amounting to some 40,000 tonnes, and subsequently destroyed them under international verification by the end of 2017. The corresponding production facilities were also declared and either destroyed or converted for peaceful purposes. However, the US, among others, has long expressed suspicions that the declarations may not have been complete, that some stockpiles or facilities may not have been declared, and that Russia may thus have continued its chemical weapons programme or withheld stockpiles.

A clue to this suspicion was the 2002 hostage situation in a Moscow theatre, where an aerosolised fentanyl derivative, a powerful narcotic, was used to free the hostages. The rapid deployment capability as well as the chemical structures of the agents used raised questions about possible continuing research and development activities by Russia. In recent years, there have been further indications of offensive chemical weapons activities in connection with the attempted assassinations of Sergey Skripal (2018) and Alexei Navalny (2020). In both cases, the victims were poisoned with substances of the Novichok group, which was developed by the Soviet Union as part of its chemical weapons programme.

Novichok agents were not initially included in the OPCW Schedules of controlled substances. Some of them were included, however, after the Skripal attack. These Schedules are merely an instrument to assist in the verification of the Chemical Weapons Convention. They do not list banned substances and do not define what a chemical weapon is. However, the amendment to the Schedules, the first ever, only related to certain Novichok structures. For example, a technical investigation conducted by the OPCW at Germany's request in connection with the Navalny case revealed that the agent used in that case was not covered by the 2019 expansion of the Schedules. The emergence of such new Novichok substances reinforced suspicions that Russian laboratories continue with a chemical warfare agent development programme. Yet, while there are suspicions of Russian treaty violations, there is no undisputable evidence that could stand up in court to prove that Russia has weaponised such highly toxic nerve agents.

What can be done?

Allegations of planned or suspected treaty violations are a serious matter and must be supported with verifiable facts. Such evidence may be secured internally or by independent investigations, including CWC mechanisms, and presented to the international community for assessment and action.

The results of such investigations can also form the basis for imposing sanctions on rule-breakers. Meaningful investigation results could also make disinformation a less attractive strategy and help deter the use of chemical weapons. However, invoking the OPCW's formal investigation procedures must be weighed against the risk that Russia might try to exploit a possible negative or unclear investigation result for propaganda purposes. The article by Russian Foreign Minister Lavrov quoted above would suggest that such behaviour might be expected.

Although as yet, no action has been taken in the CWC framework to deal with possible Russian violations of the CWC or with false accusations against Ukraine, it would be important to counter these Russian allegations against Ukraine with careful analysis and independent investigations. Together with clear public statements, such analyses and investigations could counteract an escalation of the war situation and of further inter-state tensions within and outside the OPCW. In addition, they could create conditions that would enable at a later stage to draw on hard evidence, had the prohibition of chemical weapons use indeed been violated and sanctions were to be applied or criminal proceedings opened.

In addition, Ukraine should also consider having its allegations of Russian chemical weapons uses investigated internationally. The persistent failure to use international procedures to investigate such suspicions can give the false and risky impression that they are not fit for purpose and that member states lack confidence in their effectiveness.

However, should States, for whatever reason, avoid formal international investigations, the Director-General of the OPCW still has a basic obligation, stemming from the authority of his office, to defend the norm against chemical weapons and to systematically follow up on allegations of possible treaty violations, including, if necessary and possible, through on-site investigations.

Kristoffer Burck, Una Jakob, Gunnar Jeremias, Alexander Kelle, Thilo Marauhn, Oliver Meier, Kathryn Nixdorff, Ralf Trapp, Barry de Vries

OPCW Director-General Fernando Arias addressing the Chemical Weapons Convention @ 25 seminar at OPCW headquarters, The Hague, 20 May 2022. © Organisation for the Prohibition of Chemical Weapons