JURIST Guest Columnist David M. Crane of the Syracuse University College of Law discusses recent harmful developments regarding the restriction of chemical weapons in international law…

The United Nations Security Council (UNSC) should not ignore or walk away from the alleged use of any prohibited weapon, such as chemicals, as it signals it is permissible to violate the Chemical Weapons Convention (CWC) and erodes international norms related to such weapons. Further, it signals that countries with deep ties to P5 (U.K., U.S., France, Russia, China) are outside the scope of UNSC authority, therefore creating a bigger issue of eroding the international authority of the UNSC and jeopardizing the foundation of international law.

On Tuesday, October 24, 2017, Russia vetoed the resolution extending the mandate of the investigators probing chemical weapons attacks in Syria. [JURIST report] [Meeting Record] Following the chemical attack in 2015, Russia and America created the Joint Investigative Mechanism (JIM) to investigate the presence/use of chemical weapons in Syria, which found 27 active production facilities. In its most recent report late last month, the Organisation for the Prohibition of Chemical Weapons (OPCW) said it had verified the destruction of 25 of the 27 chemical weapons production facilities declared by Syria and continued to prepare an inspection to confirm the current condition of the last two. The vote on the resolution was in advance of the JIM investigative report (presented Thursday October 26). The report sought to identify the party responsible for a deadly April 4 attack in the rebel-controlled town of Khan Sheikhoun in southern Idlib that killed and sickened scores of civilians allegedly using sarin gas. Shortly after that attack, the United States launched an airstrike on a Syrian air base and accused the al-Assad regime of carrying out the gas attack.

This action by Russia is primarily concerned with the sovereignty of Syria and stresses the maxim that you cannot enter a sovereign territory without concrete evidence of wrong doing. Further Russia believes they face possible retaliation by Syria and/or rebel groups present in Syria. Finally, Russia is concerned that there has been a blurring of lines between the conflict against Syria and the conflict against ISIS. Additionally Russia is supporting the regime and has economic ties to Syria. They do not want the US to gain any influence in Syria.

The media and various member states are concerned that the UNSC is impotent in assisting in Syria due to the P5 structure. The UNSC and the UN system are shouldering the blame for little progress in Syria. The broader discussion criticizes the entire UN system as being outdated and ineffective.

The UN is not impotent, as it has facilitated international cooperation on the conflict, resulting in ceasefires, the initial formation of JIM, condemnation of acts, and investigation of potential war crimes. Further, the UN is serving its purpose as a neutral forum for these discussions. Syria has not simply become a battlefield upon which America and Russia are fighting, nor are we seeing a return to interstate war. Therefore, the UN is working as a forum for these issues. Further negotiations need to be based on interests and relationships as nationalistic and realist strategies fail within the cooperative international organizational model.

The UN must continue to negotiate towards extending the investigation in Syria, and the UNSC should never turn away from condemning, investigating, and helping to eliminate the proliferation of chemical weapons. Ceasing any further condemnation or investigation signals to the world that the use of chemical weapons brings no accountability. If there are no ramifications for the use of chemical weapons, the CWC could become irrelevant. All State Parties to the CWC have agreed to disarm by destroying any stockpiles of chemical weapons they may hold, any facilities which produce chemical weapons, and any chemical weapons they abandoned on the territory of other States Parties in the past.

The Convention aims to eliminate an entire category of weapons of mass destruction by prohibiting the development, production, acquisition, stockpiling, retention, transfer or use of chemical weapons by States Parties. States Parties, in turn, must take the steps necessary to enforce that prohibition in respect of persons (natural or legal) within their jurisdiction.

A unique feature of the CWC is its incorporation of the ‘challenge inspection,’ whereby any State Party in doubt about another State Party’s compliance can request the Director-General to send an inspection team. Under the CWC’s ‘challenge inspection’ procedure, States Parties have committed themselves to the principle of ‘anytime, anywhere’ inspections with no right of refusal.

To lose this feature would create an incredibly dangerous world without any oversight into weapons production and use. Losing the global norm that chemical weapons are taboo could reintroduce them to warfare. Also, allowing chemical weapons leaves open the race to innovate biological weapons as well. Do we want to go in this direction in the 21st Century?

An inadequate international response to the use of chemical weapons by the Syrian regime will only increase the risk that the world’s most dangerous, indiscriminate, and inhumane weapons will be used to commit atrocities in the future, erode the integrity of the CWC, and undermine the authority of the Security Council. International peace and security would be undermined.

David M. Crane is the founder of the Syrian Accountability Project and the IamSyria Campaign. He is the Founding Chief Prosecutor of the international war crimes tribunal in West Africa called the Special Court for Sierra Leone and a Professor at Syracuse University College of Law.

Suggested citation: David M. Crane, Gassing International Law, JURIST – Academic Commentary, Nov. 6, 2017, http://jurist.org/forum/2017/10/David-Crane-international-blackmail.php