Chemical Weapons and the Law

Syria is subject to the jurisdiction of the International Criminal Court (ICC), which makes the recent use of chemical weapons there a crime.  UN Weapons investigators analyzing evidence collected in Syria need about another week to establish if the weapons were used by Syrian government forces, if Syria’s leader authorized their use or was informed later, if they were instead used by rebel forces, or if more evidence is required to make a judgment.

President Obama says Syria’s leader is responsible for the crime and proposes unilateral retaliatory military action.  Congress is debating whether to authorize that.  Its vote is scheduled for two days hence, before the UN team completes its analysis.  President Obama says he has the authority to take military action even if Congress votes no.

Unfortunately, US governments always have placed their faith exclusively in military power and refused to accept the rule of international law.  President Bush’s UN representative formally excluded the USA from ICC jurisdiction.  President Obama, despite his law degree and Nobel Peace Prize, is acting the same way.

Banning chemical weapons has been a long and tortuous challenge.  The first attempt was the 1925 Geneva Protocol following the use of poison gas in WW1.  Another attempt was initiated following the WW2 Holocaust but was stymied by the Cold War.  In 1962 the US and USSR proposed elimination of all such weapons to the UN but between then and 1971 the US sprayed nearly 20 million gallons of chemical weapons in Vietnam, Laos and Cambodia which resulted, according to the Vietnam Red Cross, in as many as 400,000 people killed or maimed, and half a million children with birth defects.

We knew Iraqi troops were routinely using chemical weapons against Iran in the early 1980s, and supplied them with a couple of batches each of anthrax and botulism bacteria in 1986.  The Senate unanimously passed the Prevention of Genocide Act in 1988, which would have banned any military assistance to Iraq and import of Iraqi oil, but it did not pass in the House.  We continued to supply Iraq with equipment we knew was for use in their chemical and nuclear weapons programs until Saddam Hussein misjudged our friendliness and invaded Kuwait.

In 1993, the UN called for destruction of all existing chemical weapons, no more manufacture, and an inspection body.  Congress reluctantly ratified that statute in 1997 but then passed legislation so we could refuse inspections.

At last, the genocide in Yugoslavia and Rwanda sparked the UN in 1998 to initiate creation of an International Criminal Court, an enforcement mechanism.  The court’s independence and jurisdiction were major issues.  Could it be prevented from launching a prosecution by a veto from the US, Russia, China, the UK or France?  Would it require approval to prosecute from the country where a crime was committed?  Could it prosecute if there was already a court proceeding in that nation?   Could it prosecute crimes committed in civil wars?  Could it prosecute crimes committed before it was established?

We said we supported the ICC.  In fact, we worked hard to emasculate it.  We demanded that no US citizen could be indicted without our approval.  We required veto power over any indictment.  We insisted that the ICC could prosecute crimes only in nations that are a party to the ICC Convention.  We said the ICC could have jurisdiction only if national courts failed to act.  We demanded that national security and/or a superior’s orders must be accepted as grounds for defense.

Even though those severe constraints were reluctantly accepted, we voted against creation of the court.  The vote was 120 in favor, 7 opposed and 21 abstentions.  The court would become effective when ratified by the 60th nation.  We worked hard to prevent that.  In 2001, the Senate passed an act that would have prohibited us from cooperating with the ICC in any way, barred military aid to any country supporting the ICC and required us to use any means to release US citizens held by the court.

When in 2002 the 60th nation ratified the ICC and it came into force, we notified the UN that we refused to be a party to the treaty.

At this time 122 nations have ratified the ICC and 31 more, including Russia, have signed but not ratified the Statute, 3 of which, Israel, Sudan and the US, have withdrawn their signatures.  41 other UN member nations have not signed the Statute, including China and India.

Governments of nations that have refused ICC jurisdiction tend to be engaged in activities the ICC might well prosecute, e.g., Israel’s settlements, India and Pakistan’s activities in Kashmir, China’s in Tibet and Xinjiang, ours in Afghanistan, Pakistan, Yemen and etc.

The ICC has so far opened investigations only into 8 situations in Africa.  It has indicted 30 people, issued arrest warrants for 21 and has 5 in custody.  The atrocities being committed in Syria should be prosecuted by the ICC and we should be insisting that it do so.  We should consider other options only if the ICC is barred, e.g., by a veto from Russia, from that investigation.

We should stop telling the world we are its judge and executioner and start supporting the international rule of law.


5 comments on “Chemical Weapons and the Law

  1. Does it make a difference that Syria says it will sign the 1997 Chemical Weapons Convention (CWC) outlawing their production and use?

    Because Syria made itself to the jurisdiction of the 2002 International Criminal Court, Syrians are subject to indictment for war crimes. The ICC could investigate and prosecute those who ordered the recent use of chemical weapons there.

    Because Syria had not signed and ratified the CWC it is not required to destroy its existing chemical weapons or stop manufacturing them. If it does ratify the CWC, it must identify its chemical weapons stocks and manufacturing facilities and provide a schedule for their destruction. The Organisation for the Prohibition of Chemical Weapons (OPCW) will make inspections to verify their full compliance.

    The USA, for example, has so far destroyed 90% of its chemical weapons stockpile and has committed to complete the process by 2023. Russia, which had substantially more, has destroyed a little under 60% and committed to complete the task by 2020.

    Because it will be dangerous and difficult for OPCW to make inspections in war-torn Syria it will be very difficult to determine if the inventory the Syrian government provides is complete or if destruction it claims to have done really was done.

    It would be good if Syria signed and ratified the CWC. That would set the stage for eventual destruction of their chemical weapons.

    It would be far better to accept Syria’s offer to sign the CWC than to take military action against Syrian government forces justified as punishment for the use of chemical weapons.

    Punishment should be made by a criminal court. It should be made after guilt has been determined by a court with proper jurisdiction. The ICC has jurisdiction in Syria so it can investigate and prosecute war crimes there.

    To clarify further – the ICC does not have jurisdiction in the USA so it cannot investigate war crimes in the USA or war crimes allegedly committed by USA citizens. The USA has, however, ratified the CWC so it has committed to end its chemical weapons program.

  2. This worked out along the lines you proposed, more or less, but I am conflicted about it. On the one hand it’s great to eliminate chemical weapons. On the other hand, it distracts from the basic tragedy of the Syrian conflict and makes effective action to resolve it less likely.

  3. It`s an entirely good thing Congress refused President Obama`s misguided desire to attack Syria militarily although his threat did make it more attractive to Russia to use their leverage over Syria to get the destruction of its chemical weapons started. It was an opportunity for Russia to look smarter and more effective than the USA, which can hardly have been our President’s intention but which has had positive results.

    But as you say, David, eliminating the chemical weapons has not and will not end the suffering of the Syrian people. It will make very little difference at all. I was chatting with a fellow passenger on my way to Nepal, a medical doctor who has been working for the past year for Save the Children in Lebanon.

    Lebanon`s population is about 4.5 million plus, now, about 1 million Syrian refugees. There are so many children, not to mention adults, who have lost everything and who can barely be kept alive because they are so many and the logistics are so challenging. And the refugees are at least somewhat safe compared to those still in Syria.

    The vast majority of the klilling and wounding and destruction in Syria has been and still is being done with “conventional” weapons. In a TV interview with Syria`s leader last night he was explaining that his forces are battling Al Queda terrorists who want to take over the Syrian nation. Some of the rebels are indeed Al Queda affiliates. It`s a clever position for him to take.

    I continue to believe we should be supporting the ICC, encouraging and supporting it to investigate and prosecute war crimes of all kinds. I do not expect war can be eliminated but we could do far more to deter war crimes.

    And again, Presidents and other high officials of the USA, should be concerned that their actions could be investigated and prosecuted by the ICC

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