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Thursday, August 27, 2015

Ban's Proposal to Investigate the Use of Chemical Weapons in Syria: Attribution Mechanism

The UN Secretary General Ban Ki Moon submitted this proposal to the Security Council today, 27 August 2015. The Council is expected to endorse it within 5 days. Here's the original copy.
The Security Council unanimously adopted resolution 2235, creating a Joint Investigative Mechanism
of the UN and OPCW to identify individuals or entities responsible
for the use of chemical weapons in Syria. UN Photo - 7 August 2015.
Dear Madam President,
On 7 August 2015, the Security Council unanimously adopted resolution 2235 (2015), condemning any use of toxic chemicals, such as chlorine, as a chemical weapon in the Syrian Arab Republic and expressing its determination to identify those responsible for these acts. In this regard, the Council recalled the Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare, and the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention) and the Council's resolutions 1540 (2004), 2118 (2013) and 2209 (2015).
To this end, the Council established, for a period of one year with a possibility of future extension if it deems necessary, a Joint Investigative Mechanism (JIM) 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 Organisation for the Prohibition of Chemical Weapons (OPCW) Fact-Finding Mission (FFM) determines or has determined that a specific incident in the Syrian Arab Republic involved or likely involved the use of chemicals as weapons, including chlorine or any other toxic chemical.
I hereby submit to the Council for its authorization, in accordance with operative paragraph 5 of resolution 2235 (2015), recommendations, including elements of Terms of Reference, regarding the establishment and operation of an OPCW-United Nations Joint Investigative Mechanism. This submission is made in coordination with the OPCW Director-General. 

Her Excellency
Mrs. U. Joy Ogwu
President of the Security Council
New York
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In operative paragraph 6 of resolution 2235 (2015), the Council requested that, after it has authorized the JIM, I, in coordination with the OPCW Director-General, undertake without delay the steps, measures, and arrangements necessary for the speedy establishment and full functioning of the JIM, including recruiting impartial and experienced staff with relevant skills and expertise to fully implement the responsibilities pursuant to resolution 2235 (2015), with due regard to be given to the importance of recruiting staff on as wide of a geographical basis as is practicable.
Furthermore, in operative paragraph 9 of resolution 2235 (2015), the Council requests the OPCW FFM to collaborate with the JIM from the commencement of its work to provide full access to all of the information and evidence obtained or prepared by the FFM, including but not limited to, medical records, interview tapes and transcripts, and documentary material. The OPCW FFM would transmit all evidence and findings to the JIM. Based on the assessment of the JIM of this information, the JIM may request the OPCW FFM to provide additional information or may decide that additional investigation(s) are required.
Since the adoption of resolution 2235 (2015), I have been in close contact with OPCW Director-General Ahmet Ozfimcÿi, and staff members of our organizations have been working closely in order to develop the requested recommendations and to plan for the implementation of the resolution. Based on these consultations, and in coordination with the Director-General of the OPCW, I wish to present my recommendations, including elements of Terms of Reference, to implement our respective roles and responsibilities pursuant to resolution 2235 (2015).
For the purposes of the JIM, the United Nations and the OPCW shall operate in the areas of their particular competencies, taking into account the complementary roles of each organization.
I and the OPCW Director-General shall agree on a Supplementary Arrangement pursuant to the Relationship Agreement between the United Nations and the Organisation for the Prohibition of Chemical Weapons, concluded in 2001. Such an Arrangement shall set out the modalities for cooperation between the United Nations and OPCW in the context of resolution 2235 (2015).
The JIM shall demonstrate objectivity, and its composition shall reflect comprehensive, professional and multidisciplinary expertise to meet the mandate of the resolution.
In coordination with the Director-General of the OPCW, and the heads of other relevant international organizations as appropriate, I shall undertake the recruitment of impartial and experienced staff to provide the relevant requisite skill sets. Recruitment shall be based on professional expertise and experience, with due regard to the importance of recruiting staff on as wide a geographical basis as practicable.
I propose that the JIM be comprised of the leadership of an independent, three-member panel to be supported by a core staff of professionals grouped into three components. In this regard, the JIM shall be headed by an Assistant-Secretary-General with overall responsibility, and two Deputies at the D-2 level, responsible for the political and investigation components, respectively.
The leadership of the JIM shall be supported by three components. A Political Office, to be based in New York, shall provide political analysis, legal advice, media relations and administrative support. An Investigation Office, to be based in The Hague, shall provide chemical and medical analysis, forensics, military ordnance analysis, investigation, and information analysis. A Planning and Operations Support Office, to be based in New York, shall provide support to the political and investigation components.
Given the particular nature of the responsibilities and operating environment of the JIM, I intend to fully use the authority provided to me, including in the area of human resources, to promote the timely achievement of the mandate of the JIM, while maximizing the safety and security of its personnel.
With regard to its functions, methods of work and scope, the JIM shall conduct its operations in an independent manner and shall be responsible for its report(s).
The JIM, in fulfilling its mandate, shall ensure the integrity and confidentiality of its work, including the protection of documents and evidence, as much as possible while meeting its reporting requirements.
Operative paragraph 7 of resolution 2235 (2015) recalls that in resolution 2118 (2013), the Security Council had decided that the Syrian Arab Republic and all parties in Syria shall fully cooperate with the OPCW and the United Nations and stresses that this includes an obligation to cooperate with the OPCW Director-General and its FFM and the Secretary-General and the JIM. This includes full access to all locations, individuals and materials in the Syrian Arab Republic that the JIM deems relevant to its investigation and where it determines there are reasonable grounds to believe access is justified based on its assessment of the facts and circumstances known to it at the time, including in areas within Syrian territory but outside the control of the Government of Syrian Arab Republic, and that such cooperation also includes the ability of the JIM to examine additional information and evidence that was not obtained or prepared by the FFM but that is related to the mandate of the JIM as set forth in paragraph 5 of resolution 2235 (2015).
The FFM shall continue to operate under the authority of the OPCW Director-General.
The JIM shall undertake activities 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 FFM determines or has determined that a specific incident in the SAR involved or likely involved the use of chemical weapons, including chlorine or any other toxic chemical. In implementing its mandate, the JIM shall undertake its work in an impartial manner.
For this purpose, the JIM may undertake activities at the location(s) where the use of toxic chemicals as a weapon is alleged to have occurred, including locations directly relevant to the JIM, such as hospital(s), and emergency response stations; any other location(s) within the Syrian Arab Republic, including in territories not under its control, and in neighbouring and other relevant States, as it may consider necessary or appropriate.
The JIM shall liaise and coordinate with the Government of the Syrian Arab Republic, opposition groups and the international community, as it deems necessary.
Operative paragraph 11 of resolution 2235 (2015) requests the JIM to complete its first report within 90 days of the date on which it commences its full operation, and complete subsequent reports as appropriate thereafter. The JIM is also requested to present its report(s) to the Security Council and inform the OPCW Executive Council. These reports shall be transmitted under cover by the Secretary-General to the Security Council.
It should be noted that, the JIM shall operate separately from humanitarian work, which provides indispensable life-saving support to innocent people suffering from the conflict, as well as the political process, which is seeking to bring about a diplomatic solution to the conflict.
The JIM may have a "light footprint" in the Syrian Arab Republic, deploying only those personnel whose presence is necessary to perform their functions. The United Nations shall support JIM and FFM deployments primarily in the area of logistics, security and liaison, with support for communications, administration and possibly other areas, as may be required.
With respect to cooperation with all parties in the Syrian Arab Republic and Member States, I note that the extremely challenging mandate and dangerous situation inside the Syrian Arab Republic will impact the activities of the JIM. Success will therefore depend on the full cooperation from all parties, including the Government of the Syrian Arab Republic and other parties in Syria.
The JIM may establish contact with and receive information from any parties in the Syrian Arab Republic.
The United Nations shall engage, in its areas of responsibilities, with international and regional actors, as well as the Security Council and other stakeholders, in furtherance of the implementation of resolution 2235 (2015) and related resolutions of the Security Council. The strong support of the Security Council and key stakeholders will be essential to the success of the The Syrian Arab Republic and all parties in Syria shall cooperate fully with the JIM and shall provide full access to all locations, individuals and materials in the Syrian Arab Republic that the JIM deems relevant to its investigation and where it  determines there are reasonable grounds to believe access is justified based on its assessment of the facts and circumstances known to it at the time, including in areas within the Syrian territory but outside the control of the Syrian Arab Republic.
With regard to the cooperation with the Syrian Arab Republic and all parties in Syria, for territory both under and outside the control of the Syrian Arab Republic, full access shall be granted to the JIM and the OPCW FFM, as necessary. In order for the JIM to accomplish its mandate, it would be necessary for all parties to pause hostilities in the areas in which the JIM requires access for the period of its presence in these areas. This shall apply to the OPCW FFM as appropriate.
The United Nations shall do its utmost and use all means available to it to work with all parties to comply with these requirements, including through the good offices of the Special Envoy of the Secretary-General for Syria.
In light of the exceedingly complex security challenges which may limit the means at the disposal of the JIM, the support of the Security Council, Member States and other stakeholders with influence over parties in the Syrian Arab Republic is essential in facilitating the full compliance of all parties in the Syrian Arab Republic with their requirements.
With regard to cooperation with neighbouring States, at the request of the JIM, neighbouring States may provide support and assistance in facilitating its activities by providing, inter alia, information, security and protection for the JIM and its personnel, equipment and documents, access to victims or witnesses taking refuge on their territories, and transportation and logistical support to the activities of the JIM within their territories.
The role of other Member States will also be critical. All other Member States are called upon to offer their full support to the work of the JIM. Paragraph 8 of resolution 2235 (2015) calls on all other States to cooperate fully with the JIM and in particular to provide it and the OPCW FFM with any relevant information they may possess pertaining to 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.
The core staff of the JIM shall be funded from the regular budget. Additional expertise and activities shall be funded by voluntary contributions as requirements continue to emerge. For that purpose, the Secretary-General intends to establish a trust fund. The JIM shall make reports to donors on the status of the Trust Fund.
In accordance with paragraph 10 of resolution 2235 (2015), the Secretary-General is requested, in coordination with the OPCW Director-General, to report to the Security Council and inform the OPCW Executive Council as of the date the JIM begins its full operations and every 30 days thereafter on the progress made.
It is envisaged that the monthly progress reports shall be in respect of both Security Council resolutions 2235 (2015) and 2118 (2013).
The JIM shall complete its first report within 90 days of its commencement of full operations and complete subsequent reports as appropriate thereafter. The JIM shall transmit the report or report(s) to the Security Council under my cover letter and inform the OPCW Executive Council.
I would like to close by reiterating that the work of the JIM will be a challenging undertaking, and will require continued close cooperation between the OPCW and the United Nations, as well as the support of the Security Council, Member States and key stakeholders.
I should be grateful if you would bring the present letter urgently to the attention of the Security Council.
Please accept, Madam President, the assurances of my highest consideration.
BAN Ki-moon 
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