The Use of Chemical Weapons and Responsibility under International Criminal Law

THE USE OF CHEMICAL WEAPONS AND RESPONSIBILITY UNDER INTERNATIONAL CRIMINAL LAW THE USE OF CHEMICAL WEAPONS AND RESPONSIBILITY UNDER INTERNATIONAL CRIMINAL LAW By Dr. Sajjad U. Hasan* The UN report released on September 16, 2013, confirmed the use of chemical weapons on August 21, 2013, in the Syrian civil war. The use of such weapons in an armed conflict constitutes a war crime. The US Secretary of State declared that its country had the responsibility to enforce the norms laid down by the Chemical Weapons Convention (CWC) ignoring the legal position that enforcement action falls within the purview of the UN Security Council and an action outside the Council cannot be taken unilaterally either by an individual State or a group of States. With the exception of an action taken in individual or collective self-defence, a unilateral intervention on humanitarian or any other grounds, by-passing the Security Council, is not permitted by the UN Charter. Instead of observing the norms of the prevailing international legal order, the United States, especially after Cold War, has started treating unilateral intervention on humanitarian ground as a moral right and interpreting such action as legitimate. Such a practice will shaken the trust over the UN collective security system and accentuate global insecurity and turbulence. The factors which influence the US President's mind to back off attack on Syria are multiple. Firstly, the military option to strike unilaterally would be devoid of any legal bases. Secondly, the President failed to secure sufficient support at the G20 Summit of St. Petersburg for a military action. Thirdly, the attack, instead of controlling the situation, might have escalated it with serious political, economic and humanitarian repercussions. Fourthly, targeting chemical weapons stockpiles carries the risk of killing more people from the release of poisonous gases and of the weapons falling into the hands of terrorists1. Lastly, the President remembered the grave consequences of his country's past decisions of intervention in Iraq, Afghanistan and Libya. He had the realization that there is no guarantee that regime change in Syria would bring better results2. The concern was raised especially by the US Republicans that there is a possibility that some of the chemical weapons may be transferred out of the country. This apprehension now has no ground when Syria is cooperating with the United Nations which is evident from the fact that by meeting the September 20, 2013 deadline as set out in the Russian-US agreement concluded at Geneva, Syria has handed over complete inventory of chemical weapons to Watchdog3 and is thus complying with its obligations under the agreement. On September 28, 2013, the UN Security Council adopted a resolution that demanded destruction of Syria's chemical weapons. The resolution is legally binding but does not include automatic enforcement, such as, sanctions or the use of military force. However, if Syria fails to comply with the resolution, the Council would adopt another resolution authorizing punitive action under Chapter VII of the Charter4. Chemical weapons and history of their use Chemical weapons release substances having potential to cause widespread death, disability and excessive human suffering that means they are associated with catastrophic humanitarian consequences. They can be classified into four main categories: (1) choking agents; (2) blistering agents; (3) nerve agents; and (4) incapacitating agents5. In the World War I, the belligerents used chemical weapons especially poisonous gases like chlorine, phosgene and mustard which killed about 100,000 people. In the period between two Great Wars, chemical weapons were used on two occasions - first by Italy against Ethiopia and then by Japan against China5. In the World War II, the belligerents refrained from using chemical weapons on the battlefield although Germany had an edge over the allies in chemical weapons as it had developed nerve gas which was far more lethal than the other available chemical weapons. However, Hitler used poisonous gases to kill Jews in concentration camps1. In Vietnam War, the United States used herbicides against Vietnamese during the period between 1962-671. By 1980s, about 25 States acquired capability to develop chemical weapons. After the World War II, there were a few instances of use of chemical weapons. In the 1980s, Iraq used them during Iran-Iraq War against Iran5 and also against its Kurdish population in Halabja killing 50,000 people. Mustard gas, VX nerve gas and cyanide were used in that war6. The years 1994 and 1995 witnessed the use of chemical weapons by non-State actors when followers of a Japanese sect Aum Shinrikyo used Sarin nerve gas against civilians in Tokyo. This raised the concern on the possible use of chemical weapons by terrorists5 as they can see such weapons as an effective means for practicing terrorism. August 21, 2013 is the day when the chemical weapons have lastly been used in suburbs of Damascus killing more than 1000 civilians. The UN report on the use of chemical weapons in Syria which was released on September 16, 2013 confirmed that 'rockets containing the nerve agent Sarin were used in EinTarma, Moadamiyah and Zamalka in the Ghouta area of Damascus'7. Legal regime regulating chemical weapons The 1675 Franco-German Treaty was the oldest international instrument that prohibited the use of poison bullets. The 1874 Brussels Declaration banned the use of poisoned weapons and the projectiles causing unnecessary suffering. The first Hague Peace Conference of 1899 adopted a declaration prohibiting the use of projectiles filled with asphyxiating and deleterious gases8. Widespread resentful anger aroused by the atrocious nature of these weapons led to the adoption of the 1925 Geneva Protocol for the Prohibition of Use in War of Asphyxiating, Poisonous or other Gases that outlawed the use of chemical weapons. The Protocol, however, carried certain shortcomings, for instance, the development, production or stockpiling of chemical weapons were beyond the prohibitory scope of the Protocol. Moreover, it allowed the States Parties to reserve their right to use chemical weapons against non-parties to the Protocol or in self-defence if chemical weapons were used against them5. The 1992 UN Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC) which entered into force in 1997, obligates the States Parties that they will not develop, produce, acquire, stockpile or use chemical weapons and will not transfer them to anyone. They are also bound to destroy their chemical weapons along with the facilities used for production of such weapons within a period of ten years from the date of their becoming parties to the Convention. The Convention creates the Organization for the Prohibition of Chemical Weapons (OPCW) which is empowered to supervise implementation of its provisions in the States Parties, undertake inspections at any facility and verify destruction of chemical weapons and of facilities being used to produce them8. Responsibility for war crimes in international criminal law The use of chemical weapons in an armed conflict is one of the war crimes and is punishable under international criminal law. Article 8(1) of the Rome Statute confers jurisdiction upon the International Criminal Court (ICC) in respect of war crimes. The Statute, in its Article 13, provides three ways of triggering the jurisdiction of the Court. First, a State Party may refer a situation in which a war crime appears to have been committed to the attention of the Prosecutor of the Court in accordance with Article 14 of the Statute. States Parties are subject to the automatic jurisdiction of the Court whereas the non-parties can accept its jurisdiction in respect of a specific case by submitting a declaration of acceptance to the Court9. Secondly, the UN Security Council while acting under Chapter VII of the UN Charter, may refer a situation in which a war crime appears to have been committed to the Prosecutor of the Court. Thirdly, the Prosecutor may conduct an investigation in respect of a crime on his own initiative. He may select any case within the jurisdiction of the Court, committed on the territory of any of the States Parties as well as crimes committed by nationals of any of those States Parties anywhere else in the world. Article 15 of the Statute requires that the Prosecutor must need authorization for commencement of an investigation from the Pre-Trial Chamber of the Court10. Chapter VII of the UN Charter vests in the Security Council power to determine the existence of any threat to the peace, breach of the peace or act of aggression, and to decide what measures are needed to be taken in accordance with Articles 41 and 42 of the Charter. In the exercise of its powers under Chapter VII, the Security Council may establish an ad hoc tribunal mandated to prosecute a person responsible for war crime11. In order to address the atrocities being committed in the former Yugoslavia, the Security Council decided to create an ad hoc tribunal on February 22, 1993 authorizing it to prosecute individuals responsible for war crimes and other violations of international humanitarian law committed in former Yugoslavia12. The Security Council established another ad hoc tribunal in November, 1994 to prosecute serious violations of international humanitarian law committed in Rawanda13. To be more specific, these tribunals were set up under Article 41 which is a part of Chapter VII of the Charter. It authorizes the Security Council to take measures not involving the use of armed force9. Alternatively, the Council may decide to refer the case of war crime to the ICC pursuant to Article 13(b) of the Rome Statute. However, the Court is required to follow the principle of complementarity under which it may assume jurisdiction only if the national courts are unwilling or unable to bring to justice an individual guilty of war crime. It has been seen that national courts are often unable to try war criminals because governments are reluctant to prosecute and penalize their own nationals. Sometimes, the States lack an effective judicial system. Granting of amnesty by the State's authorities does not relieve an individual from criminal responsibility under international criminal law9. The Security Council referred the situation in Darfur, in Western Sudan to the ICC in March 2005. Security Council is further empowered by Article 16 of the Statute. In the exercise of that power, it may adopt a resolution under Chapter VII of the Charter directing the Court to suspend prosecution of a case. Rome Statute by virtue of its Article 27, excludes defence of official capacity and immunity as it declares that immunity attached to the official capacity of a person as a Head of State or Government does not create any jurisdictional bar for the Court to try such person. The Statute guarantees that 'no ruler, no junta and no army anywhere can abuse human rights with impunity'14. Similarly, Article 6(2) of the Statute of the Special Court for Sierra Leone provides that those in an official capacity shall not be exempt from international criminal liability. The Special Court in the Hague in 2012 vide its judgment in Prosecutor v. Taylor convicted and sentenced to a term of fifty years former Liberian President Charles G. Taylor for war crimes and crime against humanity although he claimed immunity from exercise of the jurisdiction of the Court on the ground that he had been head of the State at the time the indictment and arrest warrants were issued. The Court rejected his plea on the ground that the customary international law doctrine of head of State immunity does not apply to prevent an individual from being tried and sentenced by an international criminal tribunal15. A person who is convicted of a war crime may be awarded sentence of imprisonment which is served in the territory of a State designated by the Court which volunteers to accept sentenced criminals. If such offer is not made, then the sentence is served in the Netherlands11. In addition to imprisonment, the Court may impose fine and order forfeiture of property and assets derived from that crime. The Court may award reparations to be made to the victims of crimes while taking into account the extent of damage caused to them. The reparations may be collected from the convicted individuals or from the Victims Trust Fund authorized to be created under the Rome Statute for the benefit of victims of war crimes11. Rule of double jeopardy also operates that means if a person is convicted or acquitted by the Court, he will not be prosecuted again for the same offence by some other court or by the Court itself10. Conclusion The agreement reached at Geneva that requires Syria to hand over its entire chemical weapons for their destruction by mid-2014, has received a widespread international appreciation. It will have the effect of enhancing the degree of respect for the rules of international law by the world powers. The UN Secretary General's appeal 'to give peace a chance' has worked. The agreement is a great victory of peace and rule of law through a successful diplomacy conducted by the Russian and US top leaders and has helped in averting impending military attack and saving humanity from scourge of war. It is the great success of Russia on the diplomatic front and it supports the view that a bipolar or multipolar international system could better guarantee global peace and security and better serve the humanitarian interests as compared to a unipolar system. This has been seen that in a multipolar system of international power distribution, leading States are more likely to act multilaterally than unilaterally as they tend to tackle the global issues by adopting a cooperative multilateral approach and thereby contribute in maintaining a stable world order16. The world leaders, especially those of Russia, China and the United States have the greatest responsibility over their shoulders to seek a permanent and long lasting diplomatic solution of the Syrian crises by adopting a holistic approach to the issues involved. They should make a serious effort for convening an urgent international peace conference under the auspices of the UN ensuring participation of all the necessary parties involved in the crises, calling upon all the parties to the conflict to cease all firing and terminate all military activities immediately; and bringing them on the negotiation table in order to find out a solution of the crisis that guarantees a just and lasting peace in Syria. After restoration of peace, fair and transparent election on adult franchise basis should be held under the supervision of the UN, ensuring handing over of power to the majority party. The delivery of humanitarian supplies and equipment in the affected areas and to the refugees should also be expedited. The diplomatic solution restoring peace in the region will even suit the United States because eleven groups of rebels in Syria have declared that they would not accept the command of the pro-Western rebel leadership based in Turkey and establish a State to be ruled according to Sharia17. In the past few days, there have been hostilities between radical Islamists funded by some Arab countries and Free Syrian Army (FSA), the Western-backed moderate rebel faction18. There are reports that moderate groups are being progressively displaced by extremist groups as the latter being better fighters and better armed19. In the circumstances, when the moderates are becoming weak and there is absence of a unified command and control over the up-rising, the US government is reluctant to make a generous flow of arms to moderate rebels because of its apprehension that the radical Islamists might get hold of the American arms and become dominant in the fight against the government forces20. The use of chemical weapons in an armed conflict is a war crime and entails responsibility under international criminal law. Those who have committed the crime should be prosecuted and penalized and the victims be awarded reparations according to the provisions of the Rome Statute. References (1) The Economist 2013 Aug 31; 9, 22 (2) Wasserman H. An epic victory. The News 2013 Sep 17;7 (3) Syria completes handover of C-arms inventory to Watchdog. Dawn 2013 Sep 22; 15 (4) Haider M, Iqbal A. UN resolution orders destruction of Syria's chemical weapons. Dawn 2013 Sep 29; 15 (5) Gillis M. Disarmament - a basic guide. New York: United Nations; 2012. p. 39-40 (6) Wilkinson P. International relations - a very short introduction. New York: Oxford University Press; 2007. p. 120-21 (7) Dawn 2013 Sep 17; 14 (8) Kaczorowska A. Public international law. 4th ed. Oxon: Routledge; 2010. p. 803-4 (9) Bantekas I, Nash S. International Criminal Law. 3rd ed. Oxon: Routledge-Cavendish; 2007. p. 538-9 (10) Rome Statute of the International Criminal Court, UN Doc. A/CONF. 183/9, Art 15(4) (11) Sands P, Klein P. Bowett's law of international institutions. 6th ed. London: Sweet and Maxwell; 2011. p. 391-2] (12) UN Doc. S/RES/808 (1993) (13) UN Doc. S/RES/955 (1994) (14) Annan K. <http://untreaty.un.org/cod/icc/general/overview. htm. (15) American Journal of International Law 2013 April; 107(2): 424-5 (16) Smith MA. Power in the changing global order - the US, Russia and China. Cambridge: Polity Press; 2012. p.54 (17) The Economist 2013 Sep 28; 8 (18) Baker A. Why rebel in fighting in Syria is good news for the U.S. Time 2013 Sep 30; 10 (19) The Economist 2013 Sep 28; 11 (20) Time 2013 Sep 30; 32