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Crossing the red line: The use of chemical weapons in Syria and what should happen now

Published online by Cambridge University Press:  07 February 2019

Yasmin Naqvi
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Abstract

The use of chemical weapons in the armed conflict in Syria has attracted universal and widespread condemnation and has led to unified responses by various international bodies. This article examines the international community's responses to chemical weapons use in Syria from the perspective of international law. It also analyzes the potential options for accountability that are available for chemical weapons-related crimes. The intention is ultimately to make the case that the special status the international community has ascribed to chemical weapons crimes could be harnessed to create an accountability mechanism, such as an ad hoc tribunal, that could help pave the complex road towards a negotiated peace.

Keywords

chemical weaponsunnecessary sufferingsuperfluous injuryChemical Weapons ConventionRome StatuteOrganisation for the Prohibition of Chemical WeaponsUnited Nationsaccountabilityinvestigationfact-findingcustomary international lawpolitical
Type
Law and protection
Information
International Review of the Red Cross , Volume 99 , Issue 906: Conflict in Syria , December 2017 , pp. 959 - 993
Copyright
Copyright © icrc 2019 

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Footnotes

*

The views expressed are those of the author alone and do not necessarily reflect the views of the International Residual Mechanism for Criminal Tribunals or the United Nations in general.

References

1 “Syria Death Toll: UN Envoy Estimates 400,000 Killed”, Al Jazeera, 23 April 2016, available at: www.aljazeera.com/news/2016/04/staffan-de-mistura-400000-killed-syria-civil-war-160423055735629.html (all internet references were accessed in September and October 2017).

2 The UN Independent International Commission of Inquiry on the Syrian Arab Republic (CoI) has documented serious violations of human rights and international humanitarian law committed in Syria since 2011. See the more than twenty reports available at: www.ohchr.org/EN/HRBodies/HRC/IICISyria/Pages/Documentation.aspx. For detailed analysis of which international crimes may have been committed, see Van Schaak, Beth, “Mapping War Crimes in Syria”, International Legal Studies, Vol. 92, No. 1, 2016Google Scholar, available at: http://stockton.usnwc.edu/ils/vol92/iss1/9/.

3 See, for example, Amnesty International, Syria : “It Breaks the Human”: Torture, Disease and Death in Syria's Prisons, 18 August 2017, available at: www.amnesty.org/en/documents/mde24/4508/2016/en/.

4 UN Office for the Coordination of Humanitarian Affairs, “About the Crisis”, available at: http://www.unocha.org/syrian-arab-republic/syria-country-profile/about-crisis; Office of the UN High Commissioner for Refugees, “Syria Regional Refugee Response”, available at: http://data.unhcr.org/syrianrefugees/regional.php.

5 Colum Lynch, “To Assuage Russia, Obama Administration Backed Off Syria Chemical Weapons Plan”, Foreign Policy, 19 May 2017, available at: http://foreignpolicy.com/2017/05/19/to-assuage-russia-obama-administration-backed-off-syria-chemical-weapons-plan/ (“Indeed, the number of Syrians killed by chemical weapons – more than nearly 1,500 by the end of 2015, according to the Syrian American Medical Society – amounts to only a fraction of the country's dead.”)

6 Other international responses, such as the Human Rights Council-appointed CoI and the General Assembly-appointed International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Those Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM) (UN Doc. A/71.L.48, 19 December 2016), mandated to collect information about international crimes committed in Syria, have not garnered unified support. The resolution establishing the CoI (UN Doc. A/HRC/RES/S-17/1) was adopted by thirty-three votes in favour, four against and nine abstentions, while the IIIM was adopted with 105 votes in favour, fifteen against (including the Russian Federation, China and Iran) and fifty-two abstentions.

7 See, for example, Paul F. Walker, “Syrian Chemical Weapons Destruction: Taking Stock and Looking Ahead”, Arms Control Association, December 2014, available at: www.armscontrol.org/ACT/2014_12/Features/Syrian-Chemical-Weapons-Destruction-Taking-Stock-And-Looking-Ahead.

8 UNSC Res. 2235, 7 August 2015.

9 Council of the European Union, “List of Persons and Entities under EU Restrictive Measures over the Situation in Syria”, 28 October 2016, available at: http://docplayer.net/51135994-List-of-persons-and-entities-under-eu-restrictive-measures-over-the-situation-in-syria.html; US Department of the Treasury, “Treasury Sanctions Syrian Officials in Connection with OPCW-UN Findings of Regime's Use of Chemical Weapons on Civilians”, 12 January 2017, available at: www.treasury.gov/press-center/press-releases/Pages/jl0701.aspx. The sanctions instituted by various countries against Syrian officials are compiled on the International Partnership against Impunity for the Use of Chemical Weapons website, available at: www.noimpunitychemicalweapons.org/-en-.html.

10 Dan Lamothe, Missy Ryan and Thomas Gibbons-Neff, “U.S. Strikes Syrian Military Airfield in First Direct Assault on Bashar al-Assad's Government”, Washington Post, 6 April 2017, available at: https://tinyurl.com/ydbet8wg; Helene Cooper, Thomas Gibbons-Neff and Ben Hubbard, “U.S., Britain and France Strike Syria over Suspected Chemical Weapons Attack”, The New York Times, 13 April 2018, available at: www.nytimes.com/2018/04/13/world/middleeast/trump-strikes-syria-attack.html.

11 This article focuses on the events that occurred from 2012 to the end of April 2018. For an analysis of the reasons for the disparate international responses to atrocities committed in the crisis in Syria, see McCormack, Tim, “Chemical Weapons and Other Atrocities: Contrasting Responses to the Syrian Crisis”, International Law Studies, Vol. 92, 2016Google Scholar.

12 The UN received reports concerning alleged incidents in Salquin on 17 October 2012 and Homs on 23 December 2012. The UN Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic (UN Mission) ultimately found that it did not have sufficient evidence to make findings on these alleged incidents. See UN Mission, Final Report, UN Doc. A/68/663–S/2013/735, 13 December 2013 (UN Mission Final Report), paras 12–13, 18, 27, 45.

13 “Annex to the Note Verbale Dated 7 November 2005 from the Permanent Mission of the Syrian Arab Republic to the United Nations addressed to the Chairman of the Committee”, Note No. S/AC.44/2005/DDA/OC.S, 15 June 2005.

14 “Spiegel Interview with Syrian President Bashar Assad: ‘Peace Without Syria is Unthinkable’”, Spiegel, 19 January 2009, available at: www.spiegel.de/international/world/spiegel-interview-with-syrian-president-bashar-assad-peace-without-syria-is-unthinkable-a-602110-2.html.

15 “Syria Chemical Weapons Allegations”, BBC News, 31 October 2013, available at: www.bbc.com/news/world-middle-east-22557347.

16 “Remarks by the President to the White House Press Corps”, 20 August 2012, available at: https://obamawhitehouse.archives.gov/the-press-office/2012/08/20/remarks-president-white-house-press-corps.

17 UN Mission Final Report, above note 12, para. 5. The Syrian government informed the UN of its allegation that armed terrorist groups had fired a rocket from the Kfar De'il area towards Khan Al-Asal in the Aleppo governorate, resulting in twenty-five deaths and more than 110 civilians and soldiers injured. France, the UK and the United States all subsequently reported the same incident to the UN, as well as other incidents. In a letter of 14 June 2013, the United States reported to the UN Secretary-General its assessment alleging that Syrian governmental forces had used sarin in the attack in Khan Al-Asal on 19 March 2013. Ibid., paras 7–8.

18 Ibid., para. 6.

19 Article 99 of the UN Charter provides: “The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security.” Secretary-General Javier Pérez de Cuéllar indirectly justified his independent investigations of Iraqi chemical weapons use in the 1980–88 Iran–Iraq War using the Article 99 authority. See Report of the Mission Dispatched by the Secretary-General to Investigate Allegations of the Use of Chemical Weapons in the Conflict between the Islamic Republic of Iran and Iraq, UN Doc. S/17911, 12 March 1986.

20 In 1982, the UN General Assembly adopted a resolution that requested the UN Secretary-General “to investigate, with the assistance of qualified experts, information that may be brought to his attention by any Member State concerning activities that may constitute a violation of the [1925] Protocol or of the relevant rules of customary international law”: UN Doc. A/RES/37/98, 13 December 1982, section E, para. 4. However, the resolution was not adopted unanimously, and the UN Secretary-General preferred to conduct such activities under the authority of Article 99 of the UN Charter. In UNGA Res. 42/37, 30 November 1987, the UN General Assembly requested the Secretary-General to “carry out investigations in response to reports … brought to his attention by any Member State concerning the possible use of chemical … weapons that may constitute a violation of the 1925 Geneva Protocol or other relevant rules of customary international law in order to ascertain the facts of the matter, and to report promptly the results of any such investigation to all Member States”.

21 The UN Security Council resolution, UNSC Res. 620, was adopted following the Secretary-General's reports in July and August 1988 investigating allegations of the use of chemical weapons in the Iran–Iraq War (including the chemical weapons attack in Halabja in northern Iraq on 16 March 1988, which killed between 3,200 and 5,000 people).

22 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, 94 UNTS 65, 17 June 1925 (entered into force 9 May 1926). The Protocol prohibits “the use in war of asphyxiating, poisonous or other gases, and of all analogous liquids, materials or devices”, and extends this prohibition to bacteriological weapons.

23 UNSC Res. 620, 26 August 1988.

24 Ibid.

25 See Masahiko Asada, “A Path to a Comprehensive Prohibition of the Use of Chemical Weapons under International Law: From The Hague to Damascus”, Journal of Conflict & Security Law, Vol. 21, No. 2, 2016, pp. 163–165, noting that “[i]t is … unthinkable that the Geneva Protocol was intended to prohibit the use of prescribed gases in internal war before the adoption of common Article 3 [of the 1949 Geneva Conventions]”.

26 Ibid., pp. 189–192, citing the diverging views of States on this point.

27 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, 1974 UNTS 45, 3 September 1993 (entered into force 19 April 1997).

28 In a statement released on 17 July 2012, the International Committee of the Red Cross (ICRC) expressly described the violence in Syria as constituting a “non-international armed conflict”. ICRC, “Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort amid Increased Fighting”, Operational Update, 17 July 2012, available at: www.icrc.org/eng/resources/documents/update/2012/syria-update-2012-07-17.htm. The CoI concluded in its third report of 15 August 2012 that the intensity and duration of the conflict, combined with the increased organizational capabilities of anti-government armed groups, had met the legal threshold for a non-international armed conflict: UN Doc. A/HRC/21/50, para. 12.

29 See Henckaerts, Jean-Marie and Doswald-Beck, Louise (eds), Customary International Humanitarian Law, Vol. 1: Rules, Cambridge University Press, Cambridge, 2005 (ICRC Customary Law Study)CrossRefGoogle Scholar, Rule 74, available at: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v1_rul. Rule 74 finds that “[t]he use of chemical weapons is prohibited” both in international and non-international armed conflicts. The International Criminal Tribunal for the former Yugoslavia (ICTY) had declared in the 1995 Tadić case that “there undisputedly emerged a general consensus in the international community on the principle that the use of [chemical] weapons is also prohibited in internal armed conflicts”. ICTY, Prosecutor v. Dusko Tadić aka “Dule”, Case No. IT-94-1, Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, 2 October 1995, para. 121.

30 Apart from the extensive use of the Secretary-General's Mechanism during the Iran–Iraq War, there were two other instances of use: a 1992 investigation in Azerbaijan in relation to alleged weapons use by Armenia (UN Doc. S/24344, 24 July 1992, in which the experts determined that no evidence of the use of chemical weapons had been presented to the team), and a 1992 investigation in Mozambique (UN Doc. S/24065, 12 June 1992, in which the experts concluded that it was not possible to determine whether chemical weapons had been used against the Mozambican government by the non-State group RENAMO).

31 Article 27 of Part XI of the Verification Annex to the CWC provides: “In the case of alleged use of chemical weapons involving a State not Party to this Convention or in territory not controlled by a State Party, the Organization shall closely cooperate with the Secretary-General of the United Nations. If so requested, the Organization shall put its resources at the disposal of the Secretary-General of the United Nations.”

32 Agreement Concerning the Relationship between the United Nations and the Organisation for the Prohibition of Chemical Weapons, Annex to OPCW Executive Council Decision EC-MXI/DEC.1, 1 September 2000, Art. II(c), requiring the OPCW to closely cooperate with the Secretary-General in cases of the alleged use of chemical weapons involving a State not party to the Convention or in a territory not controlled by a State party to the Convention and to put its resources at the disposal of the Secretary-General. See Supplementary Arrangement Concerning the Implementation of Article II(2)(c) of the Relationship Agreement between the UN and the OPCW, September 2012.

33 UN Mission Final Report, above note 12, para. 34. Alleged incidents in the following locations had been reported by States to the UN in the preceding months: Salquin, 17 October 2012; Homs, 23 December 2012; Darayya, 13 March 2013; Khan Al-Asal, 19 March 2013; Otaybah, 19 March 2013; Adra, 24 March 2013; Sheik Maqsood, 13 April 2013; Jobar, 12–14 April 2013; Darayya, 25 April 2013; Saraqueb, 29 April 2013; Qasr Abu Samrah, 14 May 2013; and Adra, 23 May 2013.

34 See Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the Alleged Use of Chemical Weapons in the Ghouta Area of Damascus on 21 August 2013, UN Doc. A/67/997–S/2013/553, 16 September 2013 (UN Mission First Report), para. 27, concluding that chemical weapons (sarin) were used on relatively large scale, resulting in numerous casualties, particularly among civilians, including many children.

35 See “Syria/Syrian Chemical Programme – National Executive Summary of Declassified Intelligence”, France Diplomatie – Ministry of Foreign Affairs and International Development, 3 September 2013, available at: www.diplomatie.gouv.fr/IMG/pdf/Syrian_Chemical_Programme.pdf; Joby Warrick, “More than 1,400 Killed in Syrian Chemical Weapons Attack, U.S. Says”, Washington Post, 30 August 2013, available at: https://tinyurl.com/y78nuuvq.

36 UN Mission Final Report, above note 12, para. 34.

37 See White House Office of the Press Secretary, “Government Assessment of the Syrian Government's Use of Chemical Weapons on August 21, 2013”, 30 August 2013, available at: https://obamawhitehouse.archives.gov/the-press-office/2013/08/30/government-assessment-syrian-government-s-use-chemical-weapons-august-21.

38 See White House, Office of the Press Secretary, “Statement by the President on Syria”, 31 August 2013, available at: https://obamawhitehouse.archives.gov/the-press-office/2013/08/31/statement-president-syria.

39 Patrick Wintour, “John Kerry Gives Syria Week to Hand over Chemical Weapons or Face Attack”, The Guardian, 9 September 2013, available at: www.theguardian.com/world/2013/sep/09/us-syria-chemical-weapons-attack-john-kerry.

40 UN Mission First Report, above note 34, Note by the Secretary-General, para. 3.

41 Significantly, UN Security Council Resolution 2118 authorized the transfer of Syrian chemical weapons across international borders for the purpose of destruction. This was done in consideration of Article 1 of the CWC, which prohibits the transfer of chemical weapons “in any circumstances”.

42 OPCW, “Destruction of Syrian Chemical Weapons”, Executive Council Decision EC-M-33/DEC.1, 27 September 2017.

43 UNSC Res. 2118, 27 September 2013.

44 Cargo ships were supplied by Norway and Denmark, naval escorts came from China, Denmark, Norway, Russia and the UK, and a Field Deployable Hydrolysis System (FDHS) on board a US naval ship destroyed toxic chemicals. Other chemicals were destroyed in the UK and United States, and effluent from the FDHS was destroyed in Germany and Finland.

45 OPCW, “Closure of the OPCW-UN Joint Mission”, available at: https://opcw.unmissions.org/. On 1 October 2014, the OPCW, in partnership with the UN Office for Project Services, continued the plan with respect to destroying the twelve remaining chemical weapons production facilities.

46 OPCW, “Destruction of Syrian Chemical Weapons Completed”, press release, 4 January 2016, available at: www.opcw.org/news/article/destruction-of-syrian-chemical-weapons-completed/.

47 See CoI, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/27/60, 13 August 2014, paras 115–118, finding that “[r]easonable grounds exist to believe that chemical agents, likely chlorine, were used on Kafr Zeita, Al-Tamana'a and Tal Minnis in eight incidents within a 10-day period in April … [and] that those agents were dropped in barrel bombs from government helicopters flying overhead”.

48 CWC, Art. I(b). See also Art. II(1)(a), defining chemical weapons as “[t]oxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes”.

49 See CWC, Art. VI(2), providing that “each State Party shall subject toxic chemicals and their precursors listed in Schedules 1, 2 and 3 of the Annex on Chemicals, facilities related to such chemicals, and other facilities as specified in the Verification Annex, that are located on its territory or in any other place under its jurisdiction or control, to verification measures as provided in the Verification Annex”.

50 OPCW Executive Council, “Note by the Director-General: Progress in the Elimination of the Syrian Chemical Weapons Programme”, EC/88/DG.1, 23 March 2018, para. 10.

51 As noted above, pursuant to Article 27 of Part XI of the Verification Annex to the CWC, the Secretary-General's Mechanism only applies in a “State not Party to this Convention or in territory not controlled by a State Party”.

52 The Executive Council may, not later than twelve hours after having received the inspection request, decide by a three-quarter majority of all its members against carrying out the challenge inspection, if it considers the inspection request to be frivolous, abusive or clearly beyond the scope of this Convention. CWC, Art. IX.

53 Ibid., Art. X(8)(a).

54 Ibid., Art. VIII(38)(e). On this basis, the OPCW Technical Secretariat has assisted the Iraqi government with its investigation of the use of chemical weapons on its territory. See OPCW, “Director-General Expresses Concern over Alleged Recent Chemical Attacks in Iraq”, press release, 23 March 2016, available at: www.opcw.org/news/article/director-general-expresses-concern-over-alleged-recent-chemical-attacks-in-iraq/.

55 OPCW, “OPCW to Undertake Fact-Finding Mission in Syria on Alleged Chlorine Gas Attacks”, press release, 29 April 2014, available at: www.opcw.org/news/article/opcw-to-undertake-fact-finding-mission-in-syria-on-alleged-chlorine-gas-attacks/. The first report of the FFM explained that its establishment was based on the general authority of the OPCW director-general to seek to uphold at all times the object and purpose of the CWC, as reinforced by the relevant decisions of the OPCW Executive Council and UNSC Res. 2118, the general endorsement by the Executive Council of the FFM, and its acceptance by Syria through an exchange of letters on the subject between the director-general and the government of the Syrian Arab Republic, dated 1 and 10 May 2014. See OPCW, Summary Report of the Work of the OPCW Fact-Finding Mission in Syria Covering the Period from 3 to 31 May 2014, S/1191/2014, 16 June 2014, available at: www.opcw.org/fileadmin/OPCW/Fact_Finding_Mission/s-1191-2014_e_.pdf. UNSC Res. 2118 required that OPCW personnel have “immediate and unfettered access to and the right to inspect, in discharging their functions, any and all sites, and … immediate and unfettered access to individuals that the OPCW has grounds to believe to be of importance for the purpose of its mandate.”

56 UNSC Res. 2118, para. 7.

57 EC-M-48/DEC.1, preambular para. 5; EC-M-50/DEC.1, preambular para. 6; UNSC Res. 2235, preambular para. 8.

58 OPCW, Third Report of the OPCW Fact-Finding Mission in Syria, S/1230/2014, 18 December 2014, available at: www.opcw.org/fileadmin/OPCW/Fact_Finding_Mission/s-1230-2014_e_.pdf.

59 OPCW, “Reports of the OPCW Fact-Finding Mission in Syria”, Executive Council Decision EC-M-48/DEC.1, 4 February 2015, available at: www.opcw.org/fileadmin/OPCW/EC/M-48/ecm48dec01_e_.pdf. The OPCW Executive Council reiterated its support for the continuation of the FFM in its decision entitled “Further Reports of the OPCW Fact-Finding Mission in Syria”, EC-M-50/DEC.1, 23 November 2016, available at: www.opcw.org/fileadmin/OPCW/EC/M-50/en/ecm50dec01_e_.pdf.

60 UNSC Res. 2209, 6 March 2015.

61 OPCW, Report of the OPCW Fact-Finding Mission in Syria Regarding Alleged Incidents in the Idlib Governorate of the Syrian Arab Republic between 16 March and 20 May 2015, S/1319/2015, 29 October 2015, available at: www.opcw.org/fileadmin/OPCW/Fact_Finding_Mission/s-1319-2015_e_.pdf.

62 OPCW, Summary Update of the Activities Carried Out by the OPCW Fact-Finding Mission in Syria in 2016, S/1445/2016, 27 December 2016, available at: www.opcw.org/fileadmin/OPCW/Fact_Finding_Mission/s-1445-2016_e_.pdf.

63 With regard to an incident reported in the area of Al-Awamid in Aleppo on 2 August 2016, the FFM concluded that it could not confidently determine whether or not a specific chemical was used as a weapon in the incident. OPCW, Report of the OPCW Fact-Finding Mission in Syria regarding the Incident of 2 August 2016 as Reported in the Note Verbale of the Syrian Arab Republic Number 69 Dated 16 August 2016, S/1444/2016, 21 December 2016, available at: www.opcw.org/fileadmin/OPCW/Fact_Finding_Mission/s-1444-2016_e_.pdf. In another reported incident, the FFM confirmed that two female casualties were exposed to sulphur mustard in Um-Housh, Aleppo, on 16 September 2016, and that a recovered 217-mm mortar contained sulphur mustard. OPCW, Report of the OPCW Fact-Finding Mission in Syria regarding the Incident of 16 September 2016 as Reported in the Note Verbale of the Syrian Arab Republic Number 113 Dated 29 November 2016, S/1491/2017, 1 May 2017, available at: www.opcw.org/fileadmin/OPCW/Fact_Finding_Mission/s-1491-2017_e_.pdf.

64 OPCW, Report of the OPCW Fact-Finding Mission in Syria Regarding an Alleged Incident in Khan Shaykhun, Syrian Arab Republic, April 2017, S/1510/2017, 29 June 2017, available at: www.opcw.org/fileadmin/OPCW/Fact_Finding_Mission/s-1510-2017_e_.pdf.

65 “Syria War: US Launches Missile Strikes Following Chemical ‘Attack’”, BBC News, 7 April 2017, available at: www.bbc.co.uk/news/world-us-canada-39523654.

66 “‘Chemical Weapons’: The Pipedream Excuse Used in Syria by Two US Administrations”, Sputnik News, 9 April 2017, available at: https://sputniknews.com/politics/201704091052469244-us-syria-chemical-weapons-war-pretext/.

67 Ben Kamisar, “Russia: Syrian Chemical Weapons Attack Could Be ‘Staged’”, The Hill, 14 April 2017, available at: http://thehill.com/policy/international/328808-russia-questions-whether-syria-chemical-attack-was-staged.

68 Josie Ensor, “‘Were the Children Dead at All?’ Assad Says Syria Chemical Attack ‘100 Per Cent Fabrication’”, The Telegraph, 13 April 2017, available at: www.telegraph.co.uk/news/2017/04/13/chemical-weapons-experts-sent-turkey-investigate-alleged-syrian/?WT.mc_id=tmgoff_fb_tmg.

69 OPCW, above note 64, para. 7.

70 “Khan Shaykhun: We Must Establish the Truth”, RT, 27 July 2017, available at: www.rt.com/op-edge/397696-khan-shaykhun-syria-incident-investigation/.

71 Anthony Deutsch, “After U.N. Veto, Russia Moves against Chemical Weapons Watchdog”, Reuters, 21 November 2017, available at: www.reuters.com/article/us-mideast-crisis-chemicalweapons/after-u-n-veto-russia-moves-against-chemical-weapons-watchdog-idUSKBN1DL1UF. See “Statement by H. E. Ambassador A. V. Shulgin Permanent Representative of the Russian Federation to the OPCW at the Fifty-Sixth Meeting of the Executive Council Under Agenda Item 4”, EC-M-56/NAT.7, 9 November 2017 (Russian Statement), p. 1, stating that “when conducting investigations, inspectors must visit the sites of the incidents. Otherwise, all material evidence finds its way to the FFM via ‘third parties’. And that means a lack of compliance with the basic chain-of-custody principle for safeguarding evidence.”

72 “U.N. and OPCW Investigators to Visit Syria Air Base in Gas Attack Probe”, NRT, 13 October 2017.

73 “Syria War: What We Know about Douma ‘Chemical Attack’”, BBC News, 16 April 2018, available at: www.bbc.com/news/world-middle-east-43697084.

74 OPCW, “Update by the Director-General on the Deployment of the OPCW Fact-Finding Mission to Douma, Syrian Arab Republic, to the Executive Council at its Fifty-Ninth Meeting”, EC-M-59/DG.2, 18 April 2018.

75 “Syria War: ‘Chlorine’ Attack Video Moves UN to Tears”, BBC News, 17 April 2015, available at: www.bbc.co.uk/news/world-middle-east-32346790.

76 UNSC Res. 2235, 7 August 2015, para. 5.

77 UNSC Res. 2319, 17 November 2016.

78 The Security Council encourages the JIM to consult appropriate UN counterterrorism and non-proliferation bodies, in particular the 1540 Committee and the ISIL (Da'esh) and Al-Qaida Sanctions Committee, in order to exchange information on non-State actor perpetration, organization, sponsorship or other involvement in use of chemicals as weapons in Syria, and requests the JIM to brief these bodies on relevant results of its work. UNSC Res. 2319, paras 4, 9.

79 Third Report of the Organization for the Prohibition of Chemical Weapons–United Nations Joint Investigative Mechanism, UN Doc. S/2016/738, 21 August 2016 (JIM Third Report), paras 54, 56; Fourth Report of the Organization for the Prohibition of Chemical Weapons–United Nations Joint Investigative Mechanism, UN Doc. S/2016/888, 21 October 2016, para. 19.

80 JIM Third Report, above note 79, para. 58.

81 According to media reports, the JIM report states that the JIM “is confident that the Syrian Arab Republic is responsible for the release of sarin at Khan Shaykhun”. “UN-OPCW Investigators ‘Confident’ Damascus Is to Blame for April Sarin Attack”, RT, 28 October 2017, available at: www.rt.com/news/407901-opcw-jim-syria-chemical-attack/.

82 Rick Gladstone, “U.N. Panel Points Finger at Syria in Chemical Attack on Village”, The New York Times, 26 October 2017, available at: www.nytimes.com/2017/10/26/world/middleeast/syria-chemical-khan-shekhoun.html.

83 “Russia Undermining Action against Chemical Weapons, Says UK, Citing Syria ‘Cover Up’”, Reuters, 27 October 2017, available at: https://uk.reuters.com/article/uk-mideast-crisis-syria-un-britain/russia-undermining-action-against-chemical-weapons-says-uk-citing-syria-cover-up-idUKKBN1CW1AN.

84 “UN-OPCW Investigators ‘Confident’ Damascus Is to Blame for April Sarin Attack”, above note 81.

85 “Tillerson: Assad Family Reign Coming to End, Only Issue Is How to Bring It About”, RT, 26 October 2017, available at: www.rt.com/news/407855-tillerson-syria-assad-russia/.

86 “UN-OPCW Investigators ‘Confident’ Damascus Is to Blame for April Sarin Attack”, above note 81.

87 Rodrigo Campos, “Russia Vetoes UN Resolution to Find Out Who Carried Out Chemical Weapons Attacks in Syria”, The Independent, 24 October 2017, available at: www.independent.co.uk/news/world/europe/russia-syria-chemical-weapons-attack-sarin-un-resolution-china-moscow-assad-rebels-war-latest-a8017511.html; “Syria: Russia Blocks Extension of Chemical Attacks Probe”, BBC News, 16 November 2016.

88 Michelle Nichols, “Russia Casts 10th U.N. Veto on Syria Action, Blocking Inquiry Renewal”, Reuters, 16 November 2017, available at: https://ca.reuters.com/article/topNews/idCAKBN1DG31I-OCATP.

89 Pursuant to the CWC, the Conference of States Parties is required to “review compliance with the Convention” and to “[t]ake the necessary measures to ensure compliance with this Convention and to redress and remedy any situation which contravenes the provisions of the Convention, in accordance with Article XII”: CWC, Art. VIII, paras 20, 21(k). See also Article VIII(35–36), requiring the Executive Council to consider concerns regarding compliance”, and Article XII.

90 Julian Borger, “Syria Chemical Attack: US and Russia Fail to Reach UN Agreement as Tensions Rise”, The Guardian, 20 April 2018, available at: www.theguardian.com/world/2018/apr/10/russia-hits-back-over-syria-chemical-attack-with-call-for-un-inquiry.

91 H. Cooper, T. Gibbons-Neff and B. Hubbard, above note 10.

92 UNSC Res. 2118, para. 21; UNSC Res. 2235, para. 15. Notably, this statement was not reaffirmed in UNSC Res. 2319 extending the duration of the JIM.

93 “Letter Dated 28 April 2017 from the Secretary-General Addressed to the President of the Security Council – Progress in the Elimination of the Syrian Chemical Weapons Programme”, S/2017/373, 28 April 2017.

94 Rome Statute of the International Criminal Court, UN Doc. A/CONF.183/9, 17 July 1998 (entered into force 1 July 2002) (Rome Statute), Art. 13(b). A draft resolution that would have had the Security Council refer the situation of Syria to the ICC, proposed by France in 2014, was vetoed by two permanent members of the Security Council: the Russian Federation and China. “Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution”, UN Doc. SC/11407, 22 May 2014.

95 The Security Council has established two ad hoc international criminal tribunals using its Chapter VII powers, the ICTY and the International Criminal Tribunal for Rwanda. The UN has also been instrumental in the establishment of hybrid courts such as the Extraordinary Chambers in the Courts of Cambodia, the Special Court for Sierra Leone, the Special Tribunal for Lebanon, and the Special Panels in East Timor.

96 OPCW, “OPCW-United Nations Joint Investigative Mechanism Reports on Chemical Weapons Use in the Syrian Arab Republic”, Executive Council Decision EC-83/DEC.5, 11 November 2016, para. 10.

97 Ibid.

98 Ibid., para. 11.

99 The Executive Council decision was adopted by vote – a rare exception from the practice of consensus decision-making at the OPCW. A previous version of the decision advanced by the United States had contained stronger language based on the OPCW's prerogative to take action: see “Statement By H. E. Ambassador Kenneth D. Ward, Permanent Representative of the United States of America to the OPCW at the Eighty-Third Session of the Executive Council”, EC-83/NAT.5, 11 October 2016, available at: www.opcw.org/fileadmin/OPCW/EC/83/en/United_States_of_America_Statement_at_the_83nd_session_of_the_Executive_Council.pdf. Russia had counter-proposed a decision that would have required Syria to undertake a national investigation into the allegations. See “Russian Federation Statement by H. E. Ambassador A. V. Shulgin Permanent Representative of The Russian Federation to the OPCW at the Eighty-Third Session of the Executive Council (on the Results of the Vote on the draft Decision of the Executive Council on Syria)”, EC-83/NAT.20, 11 November 2016 (Statement of Russian Ambassador), available at: https://www.opcw.org/fileadmin/OPCW/EC/83/en/ec83nat20_e_.pdf. Spain proposed the compromise decision, which was eventually adopted by a narrow majority.

100 OPCW, Report by the Director-General: Status of Implementation of Executive Council Decision EC-83/DEC.5 (Dated 11 November 2016), EC-84/DG.25, 6 March 2017, para. 3, available at: www.opcw.org/fileadmin/OPCW/EC/84/en/ec84dg25_e_.pdf.

101 OPCW, Report by the Director-General: First Inspections at the Barzah and Jamrayah Syrian Scientific Studies and Research Centre Facilities in the Syrian Arab Republic in Accordance with Decision EC-83/DEC.5 (Dated 11 November 2016), EC-85/DG.16, 2 June 2017 (First Inspections Report), para. 3, available at: www.opcw.org/fileadmin/OPCW/EC/85/en/ec85dg16_e_.pdf; OPCW, “Note by the Director-General: Progress in the Elimination of the Syrian Chemical Weapons Programme”, EC-88/DG.1, 23 March 2018 (Director-General's Note), para. 11.

102 First Inspections Report, above note 101, para. 4; Director-General's Note, above note 101, para. 11.

103 Article III(1)(d) of the CWC requires States Parties to “specify the precise location, nature and general scope of activities of any facility … that has been designed, constructed or used since 1 January 1946 primarily for development of chemical weapons … [including] laboratories”. In addition, para. 1(a)(iii) of Executive Council Decision EC-M/33/DEC.1 requires Syria to submit information to the Secretariat on its chemical weapons research and development facilities.

104 First Inspections Report, above note 101, para. 10; Director-General's Note, above note 101, para. 11.

105 Israel is one of only four States not party to the CWC, although it is a signatory. The other non-party States are Egypt, North Korea and South Sudan.

106 “‘Israeli Jets Hit Syria's Masyaf Chemical Site’ – Reports”, BBC News, 7 September 2017, available at: www.bbc.co.uk/news/world-middle-east-41184867.

107 Keith Collins, Joe Ward and Karen Yourish, “What We Know About the Three Sites Targeted in Syria”, The New York Times, 14 April 2018, available at: https://www.nytimes.com/interactive/2018/04/14/world/middleeast/syria-airstrikes-chemical-weapons-sites.html. The other two air strikes were reportedly directed at the Him Shinshar chemical weapons storage site and bunker.

108 Article VIII(35) of the CWC requires the Executive Council to consider any concerns regarding compliance, and cases of non-compliance, and, as appropriate, inform States Parties and bring the issue or matter to the attention of the Conference of States Parties. The Executive Council is further required to make recommendations to the Conference regarding measures to redress the situation and to ensure compliance. In cases of particular gravity and urgency, the Executive Council must bring the issue or matter, including relevant information and conclusions, directly to the attention of the UN General Assembly and Security Council (Art. VIII(36)).

109 OPCW Conference of States Parties, “Decision – Addressing the Threat from Chemical Weapons Use”, C-SS-4/DEC.3, 27 June 2018, para. 10.

110 Ibid., para. 12.

111 UNGA Res. A/RES/69/67, 11 December 2014, preambular para. 8; UNGA Res. A/RES/70/41, 11 December 2015, preambular para. 6; UNGA Res. A/RES/71/69, 14 December 2016, op. para. 1; UNGA Res. A/RES/71/203, 19 December 2016, op. paras 3–9, 13, and preambular paras 8, 13 30. See also ibid, op. para. 42, encouraging the Security Council to take “appropriate action to ensure accountability, noting the important role that the International Criminal Court may play in this regard”.

112 UNGA Res. A/RES/71/248, 21 December 2016, preambular para. 5.

113 Ibid., op. para. 4.

114 Report of the Secretary-General: Implementation of the Resolution Establishing the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, UN Doc. A/71/755, 19 January 2017, para. 6.

115 Ibid., para. 12. See also Annex, “Terms of Reference of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011”, para. 5(a).

116 See CoI, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/36/55, 8 August 2017, para. 77, finding that “there are reasonable grounds to believe that Syrian forces attacked Khan Shaykhun with a sarin bomb at approximately 6.45 a.m. on 4 April, constituting the war crimes of using chemical weapons and indiscriminate attacks in a civilian inhabited area. The use of sarin by Syrian forces also violates the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction and Security Council resolution 2118 (2013)”.

117 See the infographic available at: www.ohchr.org/SiteCollectionImages/Bodies/HRCouncil/IICISyria/COISyria_ChemicalWeapons.jpg.

118 CoI, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/27/60, 13 August 2014, para. 118.

119 CoI, Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, UN Doc. A/HRC/25/65, 12 February 2014, paras 127–129.

120 International Partnership against Impunity for the Use of Chemical Weapons website, available at: www.noimpunitychemicalweapons.org/-en-.html.

121 “Launch of the International Partnership against Impunity for the Use of Chemical Weapons (23 January 2018)”, France Diplomatie – Ministry of Foreign Affairs and International Development, available at: www.diplomatie.gouv.fr/en/french-foreign-policy/disarmament-and-non-proliferation/events/article/chemical-weapons-ending-impunity-23-01-18.

122 The Russian ambassador to the OPCW said of the JIM's reports: “These conclusions are not convincing, they are superficial, and they were produced by dubious methodology.” See Statement of Russian Ambassador, above note 99. See also Russian Statement, above note 71.

123 Somini Sengupta, “Russia and U.S. Clash Over Syria in Security Council Vote”, The New York Times, 28 February 2017, available at: www.nytimes.com/2017/02/28/world/middleeast/united-nations-security-council-syria-sanctions-russia-trump.html.

124 Ibid.

125 See above notes 86–88.

126 See, for example, Seymour M. Hersh, “Whose Sarin?”, London Review of Books, Vol. 35, No. 24, 19 December 2013, available at: www.lrb.co.uk/v35/n24/seymour-m-hersh/whose-sarin.

127 Gregory Koblentz, “Syria's Chemical Weapons Kill Chain”, Foreign Policy, 7 April 2017, available at: http://foreignpolicy.com/2017/04/07/syrias-chemical-weapons-kill-chain-assad-sarin/.

128 “Russia Vetoes UNSC Resolution on Renewing Syria Chemical Weapons Probe”, RT, 24 October 2017, available at: www.rt.com/news/407641-russia-veto-chemical-un-resolution/.

129 See, for example, S. M. Hersh, above note 126.

130 Rule 74 of the ICRC Customary International Law Study, above note 29, states that “[t]he use of chemical weapons is prohibited” both in international and non-international armed conflicts. Rule 156 states that “[s]erious violations of international humanitarian law constitute war crimes”. Article 3(a) of the Statute of the ICTY provided jurisdiction over “employment of poisonous weapons or other weapons calculated to cause unnecessary suffering”. “Employing poison or poisoned weapons” and “[e]mploying asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” constitutes a war crime in international and non-international armed conflicts under the Rome Statute, Articles 8(2)(b)(xvii–xviii) and 8(2)(e)(xiii–xiv) respectively.

131 Syria is not a party to the Rome Statute. If Syria had been a party to the Statute, the ICC may have been able to exercise jurisdiction if Syria had been found to be unable or unwilling to prosecute the crimes under the Statute. See Rome Statute, Arts 12(2), 13, 17.

132 “Russia, China Block Security Council Referral of Syria to International Criminal Court”, UN News Centre, 22 May 2014.

133 Rome Statute, Arts 8(2)(b)(xvii–xviii), 8(2)(e)(xiii–xiv).

134 See Akande, Dapo, “Can the ICC Prosecute for Use of Chemical Weapons in Syria”, EJIL: Talk!, 23 August 2013Google Scholar, available at: www.ejiltalk.org/can-the-icc-prosecute-for-use-of-chemical-weapons-in-syria/.

135 For a discussion, see Alamuddin, Amal and Webb, Philippa, “Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute”, Journal of International Criminal Justice, Vol. 8, No. 5, 1 November 2010, pp. 1227–1228CrossRefGoogle Scholar.

136 See, for example, Ralf Trapp, “The Investigation into the Islamic State and Chemical Weapons, Just Security, 27 October 215, available at: www.justsecurity.org/27116/investigation-islamic-state-chemical-weapons/; Alex Whiting, “The International Criminal Court, the Islamic State, and Chemical Weapons”, Just Security, 4 November 2015, available at: www.justsecurity.org/27359/icc-islamic-state-chemical-weapons/. See, contra, Kevin Jon Heller, “The Rome Statute Does Not Criminalise Chemical and Biological Weapons”, Opinio Juris, 5 November 2015, available at: http://opiniojuris.org/2015/11/05/why-the-rome-statute-does-not-criminalise-chemical-and-biological-weapons/.

137 See William Schabas, “Chemical Weapons: Is It a Crime?”, PhD Studies in Human Rights, 23 April 2013, available at: http://humanrightsdoctorate.blogspot.nl/2013/04/chemical-weapons-is-it-crime.html.

138 See D. Akande, above note 134.

139 Ibid.

140 Persecution could be proved if the person or persons are targeted by chemical weapons by reason of the identity of a group or collectivity or targeted as the group or collectivity as such. ICC, Elements of Crimes, Art. 7(1)(h)(2).

141 Ban Ki-moon, as former Secretary-General of the UN, stated that the use of any chemical weapons in Syria would amount to a “crime against humanity” and there would be “serious consequences” for the perpetrators. “Use of Chemical Weapons in Syria Would Be ‘Crime against Humanity’ – Ban”, UN News Centre, 23 August 2013. Similarly, President Obama stated that the use of chemical weapons would constitute a crime against humanity. White House Office of the Press Secretary, “Remarks by the President in Address to the Nation on Syria”, 10 September 2013, available at: www.whitehouse.gov/the-press-office/2013/09/10/remarks-president-address-nation-syria.

142 See Human Rights Watch, “Syria: Coordinated Chemical Attacks on Aleppo”, 13 February 2017, available at: www.hrw.org/news/2017/02/13/syria-coordinated-chemical-attacks-aleppo.

143 In the Anfal case, the Iraqi Special Tribunal found Ali Hassan al-Majid, the secretary-general of the Northern Bureau of the Ba'ath Party responsible for commanding all State agencies in the Kurdish-populated region of the country in 1987–88, guilty of committing genocide against the Kurds using chemical weapons. Iraqi High Tribunal, Farhan Mutlak Al Jibouri, Sultan Hashim Ahmad Al Tae'e, Hussein Rashid Mohammed and Ali Hasan Al Majid v. the General Prosecutor, Appeals Commission, 4 September 2007, available at: www.worldcourts.com/ist/eng/decisions/2007.09.04_Prosecutor_v_al_Majid_et_al.pdf.

144 UNSC Res. 2118, 27 September 2013.

145 Ibid., preambular para. 8 and op. paras 1, 5, 15 (notably, the language changes slightly to “should be held accountable” in op. para. 15); UNSC Res. 2209, 6 March 2015, preambular para. 8. See also operative para. 6 of UNSC Res. 2209, in which the UN Security Council stressed again “that those individuals responsible for any use of chemicals as weapons, including chlorine or any other toxic chemical, must be held accountable”. In addition, see UNSC Res. 2235, op. para. 4 (reiterating that “those individuals, entities, groups, or governments responsible for any use of chemicals as weapons, including chlorine or any other toxic chemical, must be held accountable”) and UNSC Res. 2319, preambular para. 4 (“reaffirming that the use of chemical weapons constitutes a serious violation of international law and reiterating that those individuals, entities, groups or Governments responsible for any use of chemical weapons must be held accountable”).

146 UNSC Res. 2118, op. para. 21; UNSC Res. 2209, op. para. 7; UNSC Res. 2235, para. 15.

147 OPCW, Note by the Technical Secretariat: Status of Participation In The Chemical Weapons Convention as at 17 October 2015, S/1315/2015, 19 October 2015, available at: www.opcw.org/fileadmin/OPCW/S_series/2015/en/s-1315-2015_e_.pdf. There are only four non-party States: Egypt, Israel (a signatory), North Korea and South Sudan (which has indicated an intention to accede to the CWC).

148 OPCW, Report by the Director-General: Overview of the Status of Implementation of Article VII of the Chemical Weapons Convention as at 31 July 2016, EC-83/DG.11, C-21/DG.11, 11 September 2016, paras 19–21.

149 CWC, Art. I(1)(a–b).

150 See above note 122.

151 The following States have legislation that would appear to support a prosecution for chemical weapons crimes under universal jurisdiction: Sweden (Amended Criminal Code, Chap. 2(3)); Belarus (Penal Code of Belarus, Art. 6); Finland (Penal Code Extract 39/1889, Section 7); Greece (Law No. 2991, Section 5, Art. 4); Indonesia (Law No. 9 of 2008, Art. 3, Chap. I and Art. 28, Chap. V); Liberia (Chemical Weapons Act of 2008); Republic of Serbia (Criminal Code 85/2005, Arts 7–9).

152 As of October 2017, thirty-four States Parties have ratified the document. See: https://treaties.un.org/pages/ViewDetails.aspx?src=TREATY&mtdsg_no=XVIII-10-a&chapter=18&clang=_en. The amendment comes into force one year after the State Party has accepted the amendment.

153 Report of the Third Review Conference of the CWC, RC-3/3*, 19 April 2013.

154 Ieper Declaration, 21 April 2015, available at: https://ieper100.org/commemoration/ieper-declaration/.

155 See OPCW, “Destruction of Syrian Chemical Weapons”, Executive Council Decision EC-M-33/DEC.1, 27 September 2013, preambular para. 1; OPCW, “Reports of the OPCW Fact-Finding Mission in Syria”, Executive Council Decision EC-M-48/DEC.1, 4 February 2015, preambular para. 1, op. paras 2–4; OPCW, “Further Reports of the OPCW Fact-Finding Mission in Syria”, Executive Council Decision EC-M-50/DEC.1, 23 November 2015, preambular para. 1, op. paras 3–5; OPCW, “OPCW-United Nations Joint Investigative Mechanism Reports on Chemical Weapons Use in the Syrian Arab Republic”, Executive Council Decision EC-83/DEC.5, 11 November 2016, paras 3–4; OPCW, “Decision Addressing the Threat Posed by the Use of Chemical Weapons by Non-State Actors”, Executive Council Decision EC-86/DEC.9, 13 October 2017, preambular para. 3, op. paras 3, 5–8.

156 See, for example, “Statement on Behalf of the European Union: Statement Delivered by Mr Jacek Bylica, Special Envoy for Non-Proliferation and Disarmament”, C-21/NAT.5, 28 November 2016: “The EU reiterates its strong belief that the use of chemical weapons by anyone, including non-State actors, anywhere and under any circumstances is abhorrent and must be rigorously condemned and that those responsible for such acts must be held accountable. The use of chemical weapons constitutes a violation of international law, a war crime, and a crime against humanity.” Similar statements were made by Finland, Germany, India, Ireland, Singapore and Switzerland.

157 C-21/NAT.17, 30 November 2016.

158 Statement by Sweden, 54th meeting of the Executive Council of the OPCW, 13 April 2017. See also Statement by the Permanent Representative to the OPCW of Switzerland at the Conference of States Parties, 2016: “It is of utmost importance that the perpetrators of these grave violations of international law, which can constitute war crimes and crimes against humanity, be held accountable.”

159 See, for example, United Kingdom, R v. Davison (Unreported, Newcastle Crown Court, 14 May 2010) (defendant linked to a white supremacist group produced a quantity of ricin sufficient to kill nine persons in violation of Section 2(1)(b) of the Chemical Weapons Act 1996 (United Kingdom)); United States, United States v. Levenderis, 806 F.3d 390 (2015) (defendant produced a quantity of ricin – although there was no link to a terrorist group, the Court found that the high lethality of the chemical weapon justified the prosecution under the Chemical Weapons Implementation Act 1998 (United States)); United States, Bond v. United States, 572 US (2014); United States, United States v. Fries aka Burns, 781 F.3d 1137 (2015) (concerning the production and use of a chemical weapon in violation of the Chemical Weapons Implementation Act 1998 (United States) related to the home-made production and use of a chlorine chemical device which produced a huge cloud that required the evacuation of the neighbourhood); United States, United States v. Ghane, 673 F.3d 771 (8th Cir.2012) (defendant possessed enough potassium cyanide to kill 450 people); United States, United States v. Crocker, 260 F. App'x 794 (6th Cir.2008) (defendant attempted to acquire VX nerve gas and chlorine gas as part of a plot to attack a federal courthouse); United States, United States v. Krar, 134 F. App'x 662 (5th Cir.2005) (per curiam) (defendant possessed sodium cyanide); United Kingdom, United Kingdom v. Ali (Unreported, Central Criminal Court (Old Bailey), 18 September 2015 (defendant attempted to acquire ricin on the “dark web” in contravention of the Chemical Weapons Act 1996 (United Kingdom)).

160 British Military Court, The Zyklon B Case, Case No. 9, Hamburg, 8 March 1946, in Law Reports of Trials of War Criminals, UN War Crimes Commission, Vol. 1, 1947, p. 94.

161 Tucker, Jonathan B., War of Nerves: Chemical Warfare from World War I to Al-Qaeda, Pantheon Books, New York, 2006Google Scholar.

162 British Military Court, Zyklon B, above note 160.

163 The acts were prosecuted as war crimes since genocide was not yet codified as an international crime at the time of these trials (the Genocide Convention was adopted in 1948). In addition, by reason of the application of the laws of war at the time by the military tribunals, the case was focused on the murder of interned Allied civilians, rather than on the murder of the Jews, despite the fact that the Jews were the primary victims of the gas.

164 Harris, Sheldon H., Factories of Death: Japanese Biological Warfare, 1932–45 and the American Cover-Up, Routledge, Abingdon, 1994Google Scholar; Tourinsky, Shirley (ed.), Medical Aspects of Chemical and Biological Warfare, Office of the Surgeon General, US Department of the Army, 2008, p. 418Google Scholar.

165 Russell Working, “The Trial of Unit 731”, Japan Times, 5 June 2001, available at: https://tinyurl.com/ycmefuem; Piccigallo, Philip R., The Japanese on Trial: Allied War Crimes Operations in the East, 1945–1951, University of Texas Press, Austin, TX, 1979Google Scholar; Yamada, Otozo, Materials on the Trial of Former Servicemen of the Japanese Army Charged with Manufacturing and Employing Bacteriological Weapons, Foreign Languages Publishing House, Moscow, 1950Google Scholar.

166 O. Yamada, above note 165, p. 490.

167 District Court of The Hague, Public Prosecutor v. Frans Cornelius van Anraat, Case No. 09/751003-04, 23 December 2005, available at: www.haguejusticeportal.net/index.php?id=4497.

168 Court of Appeal of The Hague, Public Prosecutor v. Frans Cornelis van Anraat, Case No. 2200050906-2, Appeal Judgment, 9 May 2007.

169 Supreme Court of the Netherlands, Public Prosecutor v. Frans Cornelis van Anraat, Case No. 07/10742, Judgment, 30 June 2009.

170 ECtHR, Frans Cornelis van Anraat v. The Netherlands, Appl. No. 65389/09, 6 July 2010.

171 Iraqi High Tribunal, Al Majid et al., above note 143.

172 Iraqi High Tribunal, Special Verdict Pertaining to Case No 1/C Second/2006: Al Anfal, Second Criminal Court, Ref. No. 1/C Second/2006, 24 June 2007, p. 294, available at: www.worldcourts.com/ist/eng/decisions/2007.06.24_Prosecutor_v_al_Majid_et_al.pdf. See also Human Rights Watch, “Chemical Ali in His Own Words: The Ali Hassan Al-Majid Tapes”, available at: http://pantheon.hrw.org/legacy/campaigns/iraq/chemicalali.htm (audio file available at: http://pantheon.hrw.org/legacy/campaigns/iraq/chemali.mp3).

173 Rule 36 of the OPCW Executive Council Rules of Procedure provides that “decisions of the Council on matters of substance shall be made by a two-thirds majority of all its members”. Rule 69 of the OPCW Rules of Procedure of the Conference of States Parties provides that “[d]ecisions on matters of substance should be taken as far as possible by consensus. If consensus is not attainable when an issue comes up for decision, the presiding officer shall defer any vote for 24 hours and during this period of deferment shall make every effort to facilitate achievement of consensus, and shall report to the Conference before the end of this period. If consensus is not possible at the end of 24 hours, the Conference shall take the decision by a two-thirds majority of the Members present and voting unless specified otherwise in the Convention.”

174 OPCW, “OPCW-United Nations Joint Investigative Mechanism Reports on Chemical Weapons Use in the Syrian Arab Republic”, Executive Council Decision EC-83/DEC.5, 11 November 2016, para. 10. The decision was adopted with twenty-eight States Parties in favour, four against, and nine abstentions. OPCW, Report of the Eighty-Third Session of the Executive Council, EC-83/5, 11 November 2016, para. 6.27.

175 OPCW Conference of States Parties, above note 109, para. 10. The decision was adopted with eighty-four States Parties in favour and twenty-four against. OPCW, Report of the Fourth Special Session of the Conference of States Parties, C-SS-4/3, 27 June 2018, para. 3.15.

176 CWC, Arts VIII(21)(k), XII.

177 Article VIII(f) of the CWC provides that the Conference may establish “such subsidiary organs as it finds necessary for the exercise of its functions in accordance with the Convention”. Other international organizations have established ad hoc international criminal courts; for example, the Extraordinary African Chambers were established under an agreement between the African Union and Senegal to try international crimes committed in Chad from 7 June 1982 to 1 December 1990.

178 OPCW Conference of States Parties, above note 109, preambular para. 6 (CWC, Art. VIII(19)). The decision also refers to the functions of the Technical Secretariat to carry out verification measures (CWC, Art. VIII(37)) and to inform the Executive Council of doubts about compliance with the Convention that have come to its notice in the performance of verification activities (CWC, Art. VIII(40)).

179 OPCW Conference of States Parties, above note 109, preambular para. 10 (CWC, Art. XII(4)).

180 OPCW Conference of States Parties, above note 109, para. 12.

181 OPCW Executive Council, “Opening Statement by the Director-General to the Executive Council at its Eighty-Ninth Session”, EC-89/DG.31, 9 October 2018, para. 6.

182 See the Brussels Declaration of 1874 (prohibiting the use of poison or poisoned weapons, and the employment of arms, projectiles and material causing unnecessary suffering); the Hague Declaration Concerning Asphyxiating Gases of 1899 (prohibiting the use of projectiles the sole purpose of which is the diffusion of asphyxiating or deleterious gases); the Hague Regulation of 1907 (prohibiting the use of arms, projectiles or material calculated to cause unnecessary suffering); the 1925 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare; and the Preamble and Article I of the CWC. The ICRC Customary Law Study notes that the prohibition on the use of chemical weapons in the 1925 Protocol was originally motivated by the rule prohibiting means and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering. See ICRC Customary Law Study, above note 29, Rule 70.

183 Ibid., Rules 12, 71.

184 “Syria Denies & Condemns Use of Chemical Weapons – Foreign Minister”, RT, 7 April 2017, available at: www.rt.com/news/383677-syria-bomb-checmical-depot-terrorists/.

185 On the use of chemical weapons by Islamic State, see Eric Schmitt, “ISIS Used Chemical Arms at Least 52 Times in Syria and Iraq, Report Says”, The New York Times, 21 November 2016, available at: www.nytimes.com/2016/11/21/world/middleeast/isis-chemical-weapons-syria-iraq-mosul.html. While not directly addressed by Islamic law which predates the creation of chemical weapons, a good case may be made that the use of chemical weapons would also be prohibited by those tenets, such as the non-use of poison, the prohibition on polluting the environment, the principle of separation and the prohibition against causing unnecessary suffering. See Simonen, Katariina, “Chemical Weapons, Ayatollah Khomeini and Islamic Law”, Global Security: Health, Science and Policy, Vol. 2, No. 1, 2017Google Scholar. Khalil al-Maliki's book on jihad states that combatants are forbidden to employ weapons that cause unnecessary injury to the enemy, except under dire circumstances; hence, the use of poisonous spears is forbidden, since it inflicts unnecessary pain. Dāmād, Sayyid Mustafa Muhaqqiq et al. , Islamic Views on Human Rights, Center for Cultural-International Studies, Tehran, 2003, p. 266Google Scholar.

186 B. Van Schaak, above note 2, p. 339.

187 Agreement for the Prosecution and Punishment of the Major War Criminals of the European Axis, London, 8 August 1945.