In a landmark report released by the Organisation for the Prohibition of Chemical Weapons (OPCW), a global chemical weapons watchdog, in early April 2020, The Investigation and Identification Team (ITT) has for the first time blamed the Syrian leadership for conducting chemical attacks on civilians. While this may be hailed as a victory for survivors and activists, some rightfully question why it has taken so long to assign blame. The need to prosecute Assad’s regime's use of chemical weapons is just one example of justice delayed for the myriad of crimes committed since the start of the Syrian war in 2011. Now, victims, NGOs, and human rights activists sit front row, waiting and watching to see whether justice will still be denied.
CHEMICAL ATTACKS ON CIVILIANS
Syria's President, Bashar al-Assad, has always denied using chemical weapons in civilian attacks, dubbing reports of such accusations "100% fabricated." Yet, the ITT report concluded that the Syrian air force used chemical weapons such as sarin and chlorine in three separate attacks in March 2017 on the Syrian town of Ltamenah. Sarin is a banned nerve agent and weaponising chlorine is prohibited under the Chemical Weapons Convention, ratified by Syria in 2013. The use of chemical weapons against civilians is also prohibited under customary international humanitarian law, as specified by the 1925 Geneva Protocol.
THE OPCW & THE ITT
The OPCW is the implementing body for the Chemical Weapons Convention. It previously lacked the mandate to assign blame to perpetrators of chemical attacks until the creation the ITT. The ITT at the OPCW was established by a June 2018 resolution (clause 10) of the Conference of the State parties "to identify the perpetrators of the use of chemical weapons in the Syrian Arab Republic." However, as affirmed by the OPCW's Director-General, "the ITT is not a judicial or quasi-judicial body with the authority to assign individual criminal responsibility." Therefore, while the OPCW may have pulled the curtain, it has been left to the international community to shed light on Assad's regime.
WHY PROSECUTION HAS FAILED IN THE PAST
Previous attempts to prosecute Assad's regime for crimes in Syria have failed because Syria is not a signatory to the Rome Statute- the treaty that established the International Criminal Court (ICC). The ICC therefore, does not have jurisdiction to investigate crimes in Syria. However, under Article 13(b) of the Rome Statute, the ICC can investigate international crimes in situations not under its jurisdiction if granted a referral by the UN Security Council. Attempts to use this provision have failed as Russia and China have previously exercised their vetoes in the Security Council to block the ICC referral of Syria. Russia's infamous disinformation campaigns have also impeded justice for Syrian victims. Nevertheless, in 2019, Syrian lawyers filed a petition to the ICC against Assad's regime, citing the Myanmar precedent as a way to curve the jurisdiction impediment.
THE MYANMAR PRECEDENT: A JURISDICTIONAL LOOPHOLE?
The ICC in the Myanmar case determined that it has jurisdiction to investigate crimes against humanity committed against the Rohingya people in Myanmar. Like Syria, Myanmar is not a member of the ICC but the Court's rationale for extending its jurisdiction was that the Rohingya people were forced to flee to Bangladesh, which is a member of the ICC. The cross-border nature of the crime hence provided the basis for the international court’s Prosecutor to open a preliminary investigation into alleged crimes in Myanmar.
Similarly, the 2019 petition against Assad was filed on behalf of 28 Syrian victims who were forced to flee to Jordan, which is a member of the ICC. Victims hope that the Rohingya precedent will force the ICC to open a preliminary investigation into crimes against humanity committed by Assad's regime in Syria. The ICC has yet to announce the outcome of the petition.
INTERNATIONAL JUSTICE ON TRIAL
The arc of the moral universe may finally be bending towards justice.
Germany is set to open the first trial prosecuting members of Assad's security services for crimes against humanity on April 23rd 2020. It uses the concept of 'universal jurisdiction'-first codified by the 1949 Geneva Convention- which enables national courts to prosecute certain crimes, even if they were not committed on its territory. However, the international community have a responsibility to hold Assad and members of his regime accountable for war crimes, including chemical attacks on civilians evidenced by the OPCW's report. Failure to do so would render futile the work of global watchdogs like the OPCW. The ICC is already criticised for being highly selective in its prosecution, placing a disproportionate focus on African countries, whilst failing to hold other state leaders accountable. The international community must make use of the OPCW's report to finally prosecute Assad and his regime.
The stage is set. The audience is waiting. International justice has to call Assad to account-unless it's willing to stand its own trial.
Ayesha is a LLB student at the University of Leeds. As an aspiring barrister, she enjoys advocacy and has spoken at platforms including Tedx and GESF.
She has a key interest in both Public and International Law. She is also founder of a student-led initiative ‘COSMOS’ that organises projects to promote the UN Sustainable Development Goals.