Fourth report of the Organization for the Prohibition of Chemical Weapons-United Nations Joint Investigative Mechanism (S/2016/888) [EN/AR]

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I. Introduction

1. The present report is the fourth report of the Organization for the Prohibition of Chemical Weapons (OPCW)-United Nations Joint Investigative Mechanism pursuant to Security Council resolution 2235 (2015). It covers the period from 20 August 2016, when the Mechanism’s third report (S/2016/738/Rev.1) was submitted to the Security Council, to 19 October 2016.

II. Background

2. The Mechanism was established with a mandate to identify to the greatest extent feasible individuals, entities, groups or Governments who were perpetrators, organizers, sponsors or otherwise involved in the use of chemicals as weapons, including chlorine or any other toxic chemical, in the Syrian Arab Republic where the OPCW fact-finding mission determined or had determined that a specific incident in the Syrian Arab Republic had involved or had likely involved the use of chemicals as weapons.

3. The Mechanism began its activities with the appointment of the Leadership Panel on 24 September 2015. In accordance with paragraphs 6 and 9 of Security Council resolution 2235 (2015), various agreements were concluded concerning the work of the Mechanism, including with OPCW and the Syrian Arab Republic. Pursuant to paragraph 10 of the resolution, the Secretary-General, in his letter dated 9 November addressed to the President of the Security Council (S/2015/854), informed the Council that the Mechanism would begin its full operations on 13 November.

4. The Mechanism’s mandate was implemented in two phases. The first, pertaining to information collection and planning for case development, consisted of reviewing and analysing the mission’s data, mapping the incidents and developing an investigation plan and methodology. The Mechanism also began to collect information and evidence not obtained or prepared by the mission that was deemed to be relevant to its mandate (non-mission sources), including information from the Government of the Syrian Arab Republic and all parties in the Syrian Arab Republic, other Member States, individual groups and entities and open sources. At the end of the first phase, the Mechanism informed the Security Council of the following nine cases of use of chemicals as weapons in the Syrian Arab Republic to be investigated:
(a) Kafr Zita, Hama governorate, 11 April 2014;
(b) Kafr Zita, Hama governorate, 18 April 2014;
(c) Talmenes, Idlib governorate, 21 April 2014;
(d) Al-Tamanah, Idlib governorate, 29 and 30 April 2014;
(e) Al-Tamanah, Idlib governorate, 25 and 26 May 2014;
(f) Qmenas, Idlib governorate, 16 March 2015;
(g) Sarmin, Idlib governorate, 16 March 2015;
(h) Binnish, Idlib governorate, 24 March 2015;
(i) Marea, Aleppo governorate, 21 August 2015.

5. Following the identification of those nine cases, the Mechanism began its second phase (case investigation), which consisted of in-depth analysis of the cases and continued until sufficient relevant information had been gathered, analysed, assessed and corroborated to allow it to present its findings to the Security Council.

6. The Mechanism was not mandated to act and function as a judicial or quasi-judicial body. Moreover, it has no authority or jurisdiction, whether directly or indirectly, to make a formal or binding judicial determination of criminal liability. The Mechanism functioned as a non-judicial investigative body within its mandate, identifying “to the greatest extent feasible” individuals and other actors involved in the use of chemicals as weapons and the roles that they played. It accordingly developed its own standards, as indicated in annex I to its third report.

7. The Leadership Panel decided that, in reporting its findings to the Security Council, a sufficient degree of supporting evidence was required — that is, there is evidence of a credible and reliable nature to determine that a party was involved in the use of chemicals as weapons in the Syrian Arab Republic (see also S/2016/142, enclosure, sect. III, and S/2016/738/Rev.1, annex I).

8. The Leadership Panel, to implement a systematic approach in making the assessments, decided on key elements that the investigation would seek to establish for each case: (a) date and time; (b) weather conditions; (c) impact location; (d) munition (e.g., remnants); (e) delivery method (e.g., means and direction); (f) damage and effects (e.g., on buildings, the environment, flora and fauna); and (g) medical effects. The Mechanism aimed to corroborate all information and, as necessary, information was subjected to a separate analytical process, including through forensic analysis. In those cases in which key elements could be established consistently, the Panel reached a conclusion on the actors involved.

9. During the investigation, the Mechanism reviewed and analysed the fact-finding mission information, in addition to the information and material that it had collected. This included more than 8,500 pages of documents, transcripts of more than 200 interviews, over 950 pieces of photographic material, more than 450 videos obtained from open sources and provided by witnesses, approximately 330 pages of forensic analysis and 3,500 multimedia files. The most pertinent material was, after initial analysis by the Mechanism, further analysed by four internationally recognized forensic and defence institutes.

10. On this basis and as reflected in its third report, the Leadership Panel determined that there was sufficient information on three cases investigated to reach a conclusion as to the actors involved. The cases were Talmenes (21 April 2014), Sarmin (16 March 2015) and Marea (21 August 2015). Furthermore, the information and evidence collected in relation to three other cases investigated were deemed not to reach the level of sufficiency required for the Panel to reach a conclusion as to the actors involved. The cases were Kafr Zita (11 April 2014) and Al-Tamanah (29 and 30 April and 25 and 26 May 2014).