The very nature of wars threatens civilians’ full enjoyment of their human rights. Yet, in a world where armed conflict is an unfortunate reality, upholding a framework which protects these rights, ensuring that they are not dismissed as secondary considerations, is essential. International humanitarian law (IHL) establishes four fundamental principles of war, namely the principles of distinction, military necessity, proportionality, and the prohibition of superfluous injury. By utilising these four fundamental principles, I argue that while some civilian life will inevitably be lost in war, Assad’s persistent use of chemical weapons against civilians jeopardises the universality of the right to life. This is due to the indiscriminate nature of these weapons between combatants and non-combatants, thus inflicting excessive deaths, prolonged suffering, and superfluous injury on innocent civilians. Ultimately, this sets a dangerous precedent in which warring parties can prioritise their strategic aims over human rights with overwhelming impunity.

IHL AND THE RIGHT TO LIFE

The right to life is one which is hardly controversial. Article 6 (1) of the International Covenant on Social and Political Rights enshrines the right to life for all human beings, irrespective of any status including race, religion or political opinion. Simply put, this right is indivisible and cannot be contested. Yet, with the existence of armed conflicts, the absolute nature of this right is compromised. As such, IHL complements International Human Rights Law (IHRL) in situations of war by addressing their brute reality and regulating them to establish appropriate conduct which preserves a minimum of humanity within war. The IHL accepts that the loss of civilian life is unavoidable but necessitates that warring parties have an obligation to distinguish between civilians and combatants “and” that in no circumstances can attacks be carried out which do not make this aforementioned distinction.

These principles are enshrined in the 1949 Geneva Conventions and the four fundamental principles of armed conflict. Hence, the unequivocal prohibition of chemical weapons in the Chemical Weapons Convention (CWC), ratified by Syria in 2013, is hardly surprising. Due to their inherently indiscriminate nature chemical weapons transgress the boundaries of warfare. This results in the wide-spread destruction of human life not only through death, but also through the prolonged suffering and grotesque injury that ensues as a result. Hence, not employing these weapons is not a matter of strategic preference or choice, but rather one of moral duty and legal responsibility which Assad’s regime has continuously violated with impunity.

ASSAD’S CHEMICAL WEAPONS

Over the course of the conflict, chemical weapons have been reportedly used on 336 occasions in Syria, with 98% of these usages attributable to Assad’s regime. Of these attacks, the 2013 Eastern and Western Ghouta, the 2017 Khan Sheikhoun, and the 2018 Douma attacks have been the most egregious, garnering the most international attention due to the sheer loss of civilian life and the suffering that ensued. The cost of the Ghouta attack was more than 1400 civilian lives, including more than 400 children. Thus, claiming that the use of such weapons in the civilian neighbourhood of suburban Damascus by no means satisfied the principle of proportionality or distinction between combatant and non-combatants is hardly controversial. Even when considering this attack in isolation of the myriad of other attacks, the integrity of civilians’ right to life in war is threatened due to the sheer number of deaths and unjustified level of suffering of the civilian population which have elapsed without punishment.

Yet, the Ghouta attack was not a solitary act which represented the first and last of its kind. Rather, it was the beginning of Assad’s strategy of “draining the sea,”  in which he inflicts such unbearable pain on civilian areas hosting opposition groups that locals are either forced to withdraw their support or flee the area. That is assuming they make it out alive. Even after Syria’s ratification of the CWC in 2013 and its supposed destruction of its chemical weapons stockpile, the regime persisted in numerous chemical weapons attacks. Some of these attacks were carried out on civilian populations far from any military frontlines, resulting in “only” civilian deaths and injuries.

Even when applying humanitarian law which acknowledges the inevitability of “some” civilian casualties in war, the pervasive use of chemical weapons represents a blatant disregard for virtually every principle of IHL and Syrian civilians’ right to life. In fact, Assad’s use of chemical weapons does not merely represent a stain on the agenda of humanitarian law and the right to life in Syria. Rather, the regime’s prevailing impunity represents a real threat to the notion of the universality of the right to life outlined in humanitarian law, as well as the global resolve to ensure that civilians are not forced to bear the brunt of war.

THE RIGHT TO LIFE, ARMED CONFLICT AND THE “TENSION” IN BETWEEN

The lack of accountability for the recurring and intended infliction of superfluous injury and incidental loss of civilian life in the Syrian conflict threatens the legitimacy of the rules of armed conflict and their ability to protect civilian right to life. But, what “exactly” has been threatened and “how”?

On first consideration, it may seem intuitive that it is the universality of the right to life itself which has been jeopardised since the loss of Syrian civilian lives from these weapons far exceeds what can be deemed an “unavoidable” consequence of war. While it is indeed true that the universality of the right to life is threatened, I would argue that it is the universality of “enjoyment” or “protection” of this right that is undermined, rather than the universality of the “possession” of the right itself. This distinction, while subtle, is important. It acknowledges that although armed conflicts will inevitably result in the loss of some civilian life, civilians can never lose this right by virtue of being a civilian. This nuance shifts the focus from the insinuation of not “all” civilians “having” this human right, to the culpability and the role of perpetrators of such grotesque violations of humanitarian law, in this case the Assad regime, which impedes the universal “enjoyment” of the right to life.

Moreover, the irrefutable impunity that the Assad regime has enjoyed for its persistent violations of the principles of IHL sets a dangerous precedent for the right to life of civilians in armed conflicts more broadly. The continuous use of chemical weapons in Syria, even after ratifying the CWC, threatens the legitimate authority and influence of the OPCW. This sets an example in which civilian lives are not only disregarded but instrumentally used as a tactic of war without significant repercussions. Illustrating this only requires two considerations. First, Russia’s use of its veto power to effectively silence and eliminate the UN-OPCW Joint Investigative Mechanism (JIM), which was created in order to identify those responsible for the chemical weapons attacks. Second, the Syrian authorities’ blockade of the OPCW’s Investigation and Identification Team (IIT). As such, it becomes clear that the universal protection of civilian right to life is dictated by overriding political agendas and national interests of the countries involved in the conflict rather than a respect for civilians themselves.

RESTORING UNIVERSALITY: FROM ATTRIBUTION TO ACCOUNTABILITY

Given the Assad regime’s blatant disregard for international law, it becomes clear that even legally binding treaties such as the CWC may be impotent in forcing compliance with international human rights standards. Thus, the only means “guaranteed” of ending these violations is via a political solution which ensures a complete disarmament of the Assad regime from its chemical weapons. The reality is, however, that this is a theoretically ideal yet practically improbable outcome in the near future, especially considering the political deadlocking of decision-making in the UN due to Russia’s vehement protection of Assad. This highlights yet again the way in which the prioritisation of sovereignty over human rights bolsters the ability of states to violate the rights of their civilians without significant consequences.

By incorporating the same logic of “precedent setting” previously outlined, it is essential that the OPCW and the signatories of the CWC set a precedent that disregard for humanitarian law will be punished. One potential avenue is by referring the case to the International Criminal Court (ICC), which can investigate and try individuals accused of perpetrating grave human rights violations. Considering that Syria is not a signatory to the Rome Statute of 1988 and thus strictly speaking does not fall under the international jurisdiction of the ICC, bringing the perpetrators to justice can only be done through a referral from the Security Council. This once again leads us back to the practical impediment posed by Russia’s political interests and its paralysis of the Council.

That being said, at least partial reconciliation can be achieved by countries integrating the laws governing the international jurisdiction into their national legal code, thus providing them with the authority to investigate those responsible for and implicated in crimes against humanity. For example, a German court recently sentenced Eyad Al-Gharib, a member of Assad’s “mukhabarat” (security forces), to four and a half years in prison due to his role in the torture of detainees in Syria, which like the chemical weapons usage in Syria, is considered a crime against humanity. By doing so, states are able to demonstrate their commitment to upholding and rectifying the violations of humanitarian law and the subsequent disproportionate loss of Syrian life.

However, such a measure too requires the will and commitment of countries who are not directly involved in the war to demonstrate enough regard not only for Syrian civilians, but also for the broader project of the consequential right to life within armed conflicts. Securing accountability for the perpetrators of these crimes will not instantaneously restore the universal enjoyment of the right to life. It will, however, at the very least signal to perpetrators of such war crimes and crimes against humanity that they are not immune to accountability, and that the international community is resolved to protect the rights of civilians in war. Procuring such a will is essential. It is only through this way that international human rights standards can prevail, and the Syrian regime’s long-standing impunity can be brought to an end.

Sarah is a third year undergraduate student studying BSc Philosophy, Politics and Economics at the University College London. She has a keen interest in human rights - with a particular interest in Middle Eastern Affairs due to her Syrian origins.

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