Chemical Weapons: Is it a Crime?

The conflicting reports about Syria’s alleged use of chemical weapons raises an interesting point about international crimes. It is being widely reported that the use of chemical weapons is a war crime. But is it?

The Rome Statute contains four relevant provisions, in article 8, where a complete and exhaustive list of war crimes is set out:

(xvii) Employing poison or poisoned weapons;

(xviii) Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;

(xix) Employing bullets which expand or flatten easily in the human body, such as bullets with a hard envelope which does not entirely cover the core or is pierced with incisions;

(xx) Employing weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict, provided that such weapons, projectiles and material and methods of warfare are the subject of a comprehensive prohibition and are included in an annex to this Statute, by an amendment in accordance with the relevant provisions set forth in articles 121 and 123;

These provisions only apply to international armed conflict and are therefore not applicable to the Syrian civil war. And it isn’t really complete or exhaustive. But it is what the Rome Conference could agree upon.

At the Kampala Review Conference, held in June 2010, amendments were adopted extending the same provisions to non-international armed conflict. The amendments have only been ratified by a few States and obviously not by Syria, which is not a State Party to the Rome Statute, nor by some of the States that are accusing Syria of committing war crimes through the use of chemical weapons in a non-international armed conflict. But they also haven’t been ratified by some of the States that are now condemning Syria.

Even assuming that these provisions do apply, in a general sense, to the conflict in Syria, - the consequence of a Security Council resolution, for example - do they prohibit chemical weapons? The issue was certainly debated at the Rome Conference where the relevant paragraphs in article 8 were adopted. In the course of negotiations, only a week before the conclusion of the Conference, the Bureau proposed a text that was the ancestor of article 8 containing six paragraphs dealing with prohibited weapons, not four as in the final version. The two that did not make it to the final draft read as follows:

iv) Bacteriological (biological) agents or toxins for hostile purposes or in armed conflict;

(v) Chemical weapons as defined in and prohibited by the 1993 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction;

The penultimate draft that contained reference to bacteriological and chemical weapons also contained a broad prohibition on weapons that cause unnecessary suffering and superfluous harm and that are indiscriminate. Indeed it was broad enough to cover nuclear weapons.

The removal of an explicit reference to bacteriological and chemical weapons coincided with a removal of the broad general provision capable of covering nuclear weapons. This was a compromise designed to appease some non-nuclear states, who felt that excluding nuclear weapons alone smacked of hypocrisy. After all, chemical weapons were the ‘poor man’s’ weapon of mass destruction.

By an exercise of interpretation, it is possible to view chemical weapons as falling under the category of ‘poison or poisoned weapons’ or ‘asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices’. Of course it is also arguable that nuclear weapons are also ‘poison weapons’.

Perhaps the most likely place to find chemical weapons is in the fourth paragraph of the relevant provision in article 8 of the Rome Statute, paragraph xx, with its reference to ‘weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate’. That provision refers to an annex to the Statute. But alas, there is no annex. In preparation for the Review Conference, Belgium initially proposed the adoption of such an annex but there was insufficient interest from other States.

Of course, there should be an annex. And it should contain both chemical and nuclear weapons. That is the only position consistent with the general principle set out in 1869 in the St. Petersburg Declaration. And the vast majority of States Parties to the Rome Statute would have no difficulty with such a prohibition.

The deficient provisions in the Rome Statute on prohibited weapons are best explained by the fact that the most powerful States possess important stockpiles of weapons of mass destruction that are potentially far more harmful to humanity than isolated chemical weapons used on the battlefield. Not only do they merely retain nuclear weapons; these States continue to develop them, in defiance of their obligations under international law and in particular under the Non-Proliferation Treaty. And all the while, they continue to lecture Iran and North Korea and any other rogue upstart.

Also of interest in this discussion is the observation that the two United Nations ad hoc tribunals established to deal with essentially non-international conflicts, the International Criminal Tribunal for Rwanda and the Special Court for Sierra Leone, do not have any jurisdiction over the use of prohibited weapons. Only the Statute of the International Criminal Tribunal for the former Yugoslavia has a text on the subject. Article 3 of its Statute lists as a crime the ‘employment of poisonous weapons or other weapons calculated to cause unnecessary suffering’. It has not been prosecuted, however, nor has the Tribunal ever had to decide whether this war crime, whose text is drawn from rather archaic instruments that only concern international armed conflict, may also apply to non-international armed conflict.

Finally, the Chemical Weapons Convention of 1993 requires a mention. It of course prohibits the use of chemical weapons, but it does not make their use an international crime. It has been widely ratified, but I did not find either Syria or Israel on the list of States Parties.

The point here is not to suggest that Syria’s use of chemical weapons, if that is indeed the case, constitutes innocent or excusable behaviour. If the allegations are true, Syria has perpetrated an appalling atrocity. But the rather facile manner by which political leaders in powerful states that possess and continue to develop nuclear weapons describe the use of chemical weapons as a war crime does indeed smack of hypocrisy. One of the States condemning Syria on the matter of chemical weapons possesses a substantial arsenal of nuclear weapons, some of them aimed at Syria itself.

We should express outrage on the existence of such appalling illegal weapons. But rather than echo the United States, the United Kingdom and Israel, who themselves stockpile horrible weapons of mass destruction, we should insist that they put their money where their mouths are.