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The problems of prohibition: chemical weapons and the Syrian conflict

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In October 2015 the Organisation for the Prohibition of Chemical Weapons (OPCW) circulated three reports of its Fact Finding Mission (FFM) that had been investigating incidents of the use of toxic chemicals in Syria. In one of the reports the FFM determined “with the uptmost confidence” that sulphur mustard (mustard gas) had been used in Marea in August 2015, and in another report, that “one or more toxic chemicals – probably containing the element chlorine” – were “likely involved” in clashes in the Idlib Governorate between March and May 2015. The OPCW’s Executive Council and the UN Security Council both subsequently confirmed the reports’ findings. A final report, on alleged use of chemicals reported by the Syrian government between December 2014 and June 2015, referred to blood samples which indicated that individuals might have been exposed to the nerve agent sarin or a sarin-like substance during fighting in the Damascus suburb of Daraya in February 2015; confirmation requires further investigations. Assigning responsibility for any chemical-based attack in Syria however is the principal task of the Joint Investigative Mission (JIM) established by UN Security Council resolution 2235 in August 2015. The JIM’s first report was presented to the Security Council on February 22 and work on seven potential cases is nearing conclusion.

Concerning the use of chlorine-based chemicals in the Idlib Governorate, Jean Pascal Zanders of The Trench highlights that the FFM report “included a depiction of a so-called barrel bomb” whose features and properties were “consistent with its being designed for deployment from a height”.  Whilst this suggests government responsibility – due to their monopoly on airpower delivered devices – the use of sulphur mustard in Marea is being linked to an altogether different actor. In October 2015 a New York Times story described a Syrian family whose house was hit by an unexploded shell, covering the inhabitants with dust resembling “warm sand”. Irritant symptoms and blisters subsequently affected the family and most seriously, their infant baby died shortly afterwards. The FFM report noted that the death of an infant, perhaps this one, was “very likely” down to “…the effects of sulfur mustard...” In this and other press reports of the Marea attack, consensus is that Da’esh was responsible. If this is true then how Da’esh came across the sulphur mustard is extremely worrying: have they the ability to make it themselves? Have they overtaken a stockpile of chemical weapon agents, either in Iraq or Syria? Has a benefactor given it to them? If so whom? Moreover, if the reports concerning sarin are confirmed the consequences could be even more serious.

Attempts to limit the use of toxic chemicals, indeed all poison-based weapons in war, have been both social and legal. They are associated with a cross-cultural societal taboo stretching back over millennia, whilst attempts to limit their use in war under international law have occurred since the 19th century. The abandonment of such legal restraints during World War One, where chemical weapons were employed on an industrial scale by all sides, only furthered the moral opprobrium and revulsion at their effects. This was reflected firstly in the 1925 Geneva Protocol, which prohibited the use of both chemical and biological weapons (CBW) in international conflict, a principle later recognised to be customary international law. The 1972 Biological Weapons Convention (BWC) and 1993 Chemical Weapons Convention (CWC) built upon this, by outlawing development, production and stockpiling.

However these efforts were undertaken by states, signed by states and govern state behaviour. Secondly, like all treaties the CWC is a product of its time – in this case the Cold War – and within it, for example, are embedded concepts of chemical warfare more aligned with states from that period. Thirdly, since the end of the Cold War, the types of conflict experienced have challenged our traditional conceptualisations of what constitutes a chemical weapon and how it might be used. Such ‘new wars’, including the Syrian conflict, have suggested that there might be new utilities for toxic chemicals other than those traditionally associated with Cold War chemical warfare. One such new tactic identified in the patterns of use during the Syrian conflict by CBW expert, Julian Perry Robinson is ‘tactical terrorization’. Here the primary desire appears not necessarily to cause death or incapacitation but rather what Fritz Haber called, when looking back over the WWI experience, “psychic equilibrium” (that the demoralizing effect of gas was greater than other means of combat and more important than its ability to produce casualties). This tactic brings with it the idea of other chemicals, such as chlorine, being attractive options.

Nevertheless, a cornerstone of the CWC is ‘the general purpose criterion’ through which the negotiators defined a chemical weapon by intended purpose, rather than, say, lethality or quantity. As such they insured against ‘technological surprise’: the prohibition would be timeless and applicable in any conflict environment. The security context and shifting territorial control in Syria presents significant challenges in the practical aspects of ensuring that prohibition is fully implemented within Syria but nevertheless the Convention applies. Practical impediments aside, vital principles are at stake. In the larger context of the Syrian conflict - and latest reports suggests that 11.5% of the population has been killed or injured and 45% of the population displaced – these small scale uses of toxic chemicals might well be considered as ‘just another’ element of the conflict or indeed trivial. Directly compared to these figures, those for chemical weapons are indeed negligible, but it is important to safeguard the special categorisation of abhorrence that recourse to chemical weapons brings. As with the Syrian conflict, chemical attacks during the First World War were responsible, comparatively speaking, for far fewer casualties than conventional weapons.

However efforts at international legal prohibition begun in its aftermath has culminated in 192 states of the world deciding never again to develop or use these weapons. Should we not continue to care about these small-scale uses, or the world become inured to ad-hoc use of toxic chemicals by whatever party in an intra-state conflict it would represent a serious normative setback and a potential step back to the days when chemical weapons were considered as viable options. Indeed when the head of the JIM, Virgina Gamba, was recently asked why chemical weapons were so abhorrent in the Syrian context, she stressed that they were “abhorrent in any context”.

It is therefore important for the OPCW to continue investigation of any allegation of use in Syria through its FFM mechanism, and essential that the UN-OPCW Joint Investigation Mechanism fulfils its mandate “to identify to the greatest extent feasible individuals, entities, groups or governments that were perpetrators, organisers, sponsors or otherwise involved in the use of chemicals as weapons…” This will be by no means an easy task for the JIM – and what happens afterwards is another issue - but whilst they undertake this task, every effort must be made to reinforce the norm and for it be made clear that use of chemical weapons, by anyone, under any circumstances, is not acceptable and will not be tolerated. 

Please note: Views expressed are those of the author.

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