The Arab Spring which began in Tunisia snowballed and among the countries that were affected is Syria. However, the events in Syria hardly followed the same course as the events in other countries affected by the Arab Spring. This was because, in most of these countries, the clamor for regime change by the citizens resulted in the removal from power of their then leaders. This was the case in Egypt with the ouster of the then President Hosni Mubarak and in Libya with the ouster of the then President Muammar Gaddafi after an approximately six months civil war in which the rebels fighting against the regime received external military support from NATO. While all these countries are in the process of rebuilding themselves after the ouster of the former strongmen, the situation in Syria has only gotten worse. While it had been expected that the early events in Syria would ultimately result in the ouster of President Assad, this has hardly been the case. President’s Assad regime responded with force to the early protests against it and the situation has only grown from bad to worse. The use of force against protestors resulted in them taking up arms against the regime. This mutated into a civil war pitting President’s Assad regime on one side and rebels calling for his ouster on the other side. President Assad’s regime has continually deployed the military in attacks against the rebels. While the rebels in Libya received external support during the uprising against President Gaddafi, this has hardly been the case in Libya. However, there were recent happenings in the civil war in Syria that almost resulted in foreign intervention. This was the allegation that President’s Assad’s regime had used chemical weapons in the war. This triggered a flurry of heightened diplomatic activity which ultimately ended up with Syria agreeing to destroy its stockpile of chemical weapons lest it risked military strikes from the United States military. This submission will thus be seeking to present a discussion on how international law applies to use of chemical weapons in Syria.
While national laws seek to achieve the prevalence of order in a particular country, international law seeks to establish certain minimum standards that countries are expected to abide by with regard to a given issue. International law is usually in the form of conventions, treaties, declarations and principles. However, unlike national laws which are applicable to all persons within the geographical boundaries of a particular country, international laws have to be ratified by a particular country before they can have any force in such a country. Furthermore, enforcing international law is not as easy as enforcing national laws. This is because there is no ‘government of the world’. While various transnational bodies such as the International Criminal Court have been set up in an effort to enforce international law, they are yet to achieve any significant success. The alleged use of chemical weapons in Syria brought to the fore issues that underlie international law and more specifically its application to the use of chemical weapons in the said country.
According to international law, the use of chemical weapons is a crime of war. To that extent, there are several international treaties which were developed with the specific aim of prohibiting the use of chemical weapons during war. Such treaties include the Geneva Gas Protocol, the Hague Declaration concerning Asphyxiating Gases, the International Criminal Court Statute and the Chemical Weapons Convention. As had been indicated in earlier sections of this submission, the provisions of treaties, declarations and conventions are only binding to countries that have ratified them. It is therefore instructive to note that of all the treaties listed above, Syria had only ratified the Geneva Gas Protocol. As it is not a party to the International Criminal Court, its leaders, if suspected of having committed war crimes, can only be brought before the court through a recommendation by the United Nations Security Council. Use of chemical weapons flies in the face international humanitarian law instruments such as The Hague Regulations and the Geneva Conventions. The alleged use of chemical weapons in Syria resulting in the death of approximately 1300 people must thus be viewed in the light of the provisions of these international law instruments. Among the cardinal provisions of the international humanitarian law instruments is that chemical weapons must not be used against civilians. The alleged violation of these requirements by the Syrian regime is what triggered intense activity on the international arena so as to forestall any further repeating of the same. In other words, countries on the global stage took it upon themselves to ensure that the provisions of international law and international humanitarian law were respected and upheld.
Besides being a violation of international humanitarian law, the use of chemical weapons and more so against a civilian population is a contravention of international criminal law. International criminal law spells out acts that constitute criminal acts irrespective of the countries or geographical regions in which they are committed. The main statute that prescribes what amounts to international crime is the International Criminal Court Statute, famously known as the Rome Statute. Among other crimes, the Statute of the International Criminal Court provides that it is a criminal offence to use chemical weapons both in times of armed conflict in an international arena as well as armed conflict in non-international arena. The alleged use of chemical weapons by the regime in Syria amounted to use of chemical weapons in armed conflict in a non-international arena. To that extent, if true, this aggressive act of war amounted to a blatant disregard of the provisions of the Statute of the International Criminal Court.
Crimes against humanity are crimes which by dint of being subject to universal jurisdiction, can be prosecuted in any state irrespective of the state in which they were committed. In other words, these are not just crimes against the citizenry in a particular country. They are crimes that shock the conscience of humanity and as such can be prosecuted anywhere humanity exists. The use of chemical weapons and where this is targeted at a civilian population as alleged in Syria thus constitutes a crime against humanity. If there is sufficient evidence that certain members of the regime sanctioned the use of chemical weapons against a civilian population, then such persons can be tried by any state. It does not have to be the Syrian state which tries them. This is because they are alleged to have committed a crime which as per the dictates of international law, goes beyond the borders of Syria; it is crime against the all humanity.
International law has to some extent arguably played a role in limiting the capacity of transnational bodies such as the International Criminal Court to take action in Syria against the persons responsible for using chemical weapons against a civilian population. Given that Syria is not a member of the International Criminal Court, the court cannot, on its own motion move into Syria to commence investigations and possibly charge any persons with using chemical weapons against a civil population. It must be remembered that use of chemical weapons against a civilian population constitutes a war crime. The only way that the International Criminal Court can commence investigations in Syria is pursuant to a recommendation by the United Nations Security Council authorizing it to proceed and commence investigations. Among the reasons that this has not been possible is due to the different positions that have been adopted by the five veto wielding countries of the Security Council. One side is comprised of the United States, Britain and France while the other is composed of Russia and China. As both sides believe in different approaches to resolving the Syrian Crisis, it has not been possible to come up with a resolution that authorizes the International Criminal Court to commence investigations into the alleged commission of crimes against humanity. In the circumstances, one could argue that perhaps the Statute of the International Criminal Court should be amended so as to allow the International Criminal Court to commence investigations in any country where there are suspicions of crimes against humanity having been committed irrespective of whether such a country is a member of the International Criminal Court.
Works Cited
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Human Rights First. "Human Rights First ." 1 August 2013. Human Rights First. 26 November 2013. <http://www.humanrightsfirst.org/wp-content/uploads/HRF-Chemical-Weapons-Factsheet.pdf>.
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Taylor & Francis. "Syria crisis highlights importance of Chemical Weapons Convention." Taylor and Francis Volume 19 (2013): 4-6.
