Office to the United Nations - Geneva

Syria: Chemical Weapons and Restraints in War

In Current Events, International Justice, Middle East & North Africa, United Nations, War Crimes, World Law on August 31, 2013 at 3:21 PM

SYRIA: CHEMICAL WEAPONS AND RESTRAINTS IN WAR

By René Wadlow

There was a recent political drawing in the International Herald Tribune which showed high piles of skulls with signs on them which said “Killed by Assad’s Machine Guns”, “Killed by Assad’s Tanks” and two men with the two letters “UN” on their coats saying “If they really were killed by chemical weapons we’ll have to stop Assad.”

The accusations of the recent use of chemical weapons (CWs) in the Syrian conflict has led to a United Nations (UN) investigation as well as discussions at the UN and in national capitals as to the appropriate response to what has been called “a clear violation of international norms.” Yet there has been little discussion of why chemical weapons are prohibited and not tanks, and machine guns which in practice have killed many more people in Syria. To be more accurate, the drawing should have also shown piles of skulls with signs saying “Killed by armed opposition machine guns, snipers etc”.

A short review of the prohibitions on the use of chemical weapons, the UN response, and the use of chemical weapons in conflicts in the Middle East may be useful as background to a discussion of appropriate responses.

I had been active in 1975 with some other Geneva-based representatives of Nongovernmental Organizations (NGOs) in highlighting the fiftieth anniversary of the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare which is the core treaty on the prohibition on the use of chemical weapons. We were encouraging states to ratify the Protocol, in particular the French-speaking African states which were not covered by the original signature of the Protocol by France even though France was the Depository Power for the treaty. The Protocol is, in fact, an international treaty. It is called a protocol because it was to have been a protocol — an attachment — to a disarmament treaty never completed within the League of Nations. We were also proposing that there be some sort of investigation – dispute settlement mechanism integrated into the Protocol along the lines then being discussed in Geneva concerning what was to become the Convention on the Prohibition of Military or any Other Hostile Use of Environmental Modification Techniques (Enmod Convention) which came into force in 1978 and has an innovative mechanism for a Committee of Experts to investigate complaints.

However, in 1968, governments had begun discussing a more comprehensive ban on chemical weapons in what was then the main UN arms control body — the Eighteen-Nation Disarmament Conference. In the UN, when negotiations are not fruitful, the practice is to add more states to the body and to change the name. Thus the Eighteen-Nation Conference became the Conference of the Committee on Disarmament (1969-1979), the Committee on Disarmament (1979-1984) and the Conference on Disarmament from 1984 until today. After nearly 30 years of negotiations a far-reaching Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention) came into force in 1997, and an Organization for the Prohibition on Chemical Weapons with a sizeable Secretariat was created in The Hague. Syria is not a party to the Convention, but it is to the 1925 Geneva Protocol.

Thus, in 1975, few governments were interested in strengthening the 1925 Geneva Protocol, hoping for a speedy conclusion of the broader CW treaty. However when in the late 1970s there were serious accusations of the use of chemical agents in the on-going conflict against the Hmong in Laos — the Yellow Rain accusations — I presented a paper distributed to the members of the Commission on Disarmament (the only ways NGOs could participate directly in the disarmament discussions) “The Strengthening of the 1925 Geneva Protocol Against Poison Gas as an Interim Step Toward a Broader Chemical Weapons Ban” (April 22, 1980). The text led to a number of private discussions with the diplomats but to no specific action.

My text did, however, build a “profile” for my concern with investigating chemical weapon use and thus for my early efforts for a UN investigation of chemical weapon use in the 1980-1988 Iraq-Iran War.

CWs had been used by the Egyptian forces in their support of the republican forces in the Yemen Civil War (1962-1967). Although Egypt had signed the 1925 Geneva Protocol in 1928, its forces used them widely in Yemen. Investigations were carried out by the International Committee of the Red Cross (ICRC) who said that it was “extremely disturbed and concerned by these methods of warfare which are absolutely forbidden by codified international and customary law.” However, the ICRC is extremely cautious in commenting publicly on abuses in conflict situations fearing that publicity would hinder its main task of care of the wounded and visits to war prisoners. Government responses to the report of Egyptian CW use were weak. The US response was muted, presumably because of its own use at the time of chemical agents in the form of herbicides and harassing agents in Vietnam. On the Geneva front, it was not until the early 1970s that NGO representatives became visibly active in UN disarmament negotiations. So there was little NGO activity over the conflict in Yemen — not a high priority area in any case.

However, the Egyptian experience was not lost on everyone. Soon after the 1967 end of fighting in Yemen, Syria requested Egyptian technical assistance in developing its own chemical weapons capabilities. Iraq was also interested in the Egyptian experience; it began its own CW program in the late 1960s turning to the US for help. In 1967, Saddam Hussein and some 15 Iraqi officials participated in a fact-finding trip to the USA to familiarize themselves with chemical warfare and defensive techniques including observation of CW tests at US proving grounds.

On March 16, 1988, the Iraqi regime, then led by Saddam Hussein, used chemical weapons in a genocidal attack on the town of Halabja, in Iraqi Kurdistan. The attack on Iraq’s own Kurdish population killed 5,000 civilians and injured at least 10,000 more. Generally dubbed “Bloody Friday”, the Halabja attack also remains in the memory of the Kurdish people of Iraq and beyond as the "Kurdish Hiroshima”. (Photo by Sayeed Janbozorgi)

On March 16, 1988, the Iraqi regime, then led by Saddam Hussein, used chemical weapons in a genocidal attack on the town of Halabja, in Iraqi Kurdistan. The attack on Iraq’s own Kurdish population killed 5,000 civilians and injured at least 10,000 more. Generally dubbed “Bloody Friday”, the Halabja attack also remains in the memory of the Kurdish people of Iraq and beyond as the “Kurdish Hiroshima”. (Photo by Sayeed Janbozorgi)

I had thought from the start that an Iraq-Iran war was not a good thing and that if frontier delimitation issues were the real reason for the war as Iraq claimed, then there were better ways of dealing with the conflicting claims. I had started seeing if mediation were possible. Saddam Hussein’s half-brother was the Iraqi Ambassador to the UN in Geneva, and I think that my proposals were sent on. The formal UN-led mediation efforts had to wait until late 1985 to be carried out in Geneva and leading to the UN-brokered ceasefire of August 1988.

The first official Iranian complaint on CW use to the UN was in November 1983. The complaint ran into the same structural difficulties I had set out in my text: the 1925 Geneva Protocol has no investigative measures and no dispute settlement provisions. Thus there was a long discussion among governments about what steps to take. Finally, there was a UN Security Council resolution authorizing an investigation. The UN investigations were largely based on examination of victims in medical facilities but which took place some days after the occurrence. The highly-regarded Stockholm International Peace Research Institute (SIPRI) carried out independently interviews with victims as part of its extensive work on chemical weapons arms control possibilities.

The UN investigations led to the conclusion that the Iraq military had used CWs in violation of the 1925 Geneva Protocol, but no further action was taken. The military effectiveness of chemical weapons in the Iraq-Iran War is a matter of debate among military specialists. According to figures released by the Iranian authorities, CWs accounted for only three per cent of their one million war casualties. However, CW impact on military morale and creating fears in the civilian population is difficult to measure. In March 1988, when Iraq publicly threatened to use CWs against Iranian cities, many persons momentarily left Teheran. In the same month, the Iraq army used chemical weapons against unprotected civilians in the Iraqi-Kurdish city of Halabja.

There is also a Red Cross convention that was invoked at the time of the mass killing at Halabja and is relevant to the Syrian case as well. In the light of the experiences of the war in Vietnam which was not an “international war” in the sense that the original Red Cross conventions cover, there was a conference in Geneva so that protection could be provided in cases of “civil” or internal conflicts. The conference led to the Geneva Additional Protocols of 1977 which states in article 51.2 “The civilian population as such, as well as individual civilians, shall not be the object of attack. Acts or threats of violence, the primary purpose of which is to spread terror among the civilian population are prohibited” Further article 51.6 stipulates that “Attacks against the civilian population or civilians by way of reprisals are prohibited.”

It is now an established fact that chemical weapons have been used this month in the Syrian conflict; but just who used them? It is the Assad regime, or did armed groups with the Free Syrian Army do it? Hopefully, the report of the UN investigation mission that was sent in to investigate will yield the much-awaited answer to this question. (C) UPI

It is now an established fact that chemical weapons have been used this month in the Syrian conflict; but just who used them? It is the Assad regime, or did armed groups with the Free Syrian Army do it? Hopefully, the report of the UN mission that was sent in to investigate will yield the much-awaited answer to this question. (C) UPI

There is as yet no agreed upon international sanctions concerning the violation of humanitarian (Red Cross) law. Humanitarian law can be cited in national court trials as was the use of CWs against the Kurds in some of the Iraq trials but not the use against the Iranians. Moreover, the post-Saddam trials resemble too much “victors’ justice” to be used as a basis of world law. The International Criminal Court can also use humanitarian law as a basis for judgments, but its justice grinds slowly.

The use of poison gas strikes a deep, partly subconscious, reaction not provoked in the same way as being shot by a machine gun. The classic Greeks and Romans had a prohibition against the use of poison in war, especially poisoning water wells because everyone needs to drink. Likewise poison gas is abhorred because everyone needs to breath to live.

The UN investigations and the appropriate responses are yet to be made. More shelling of military installations in Syria is unlikely to bring about the negotiations in good faith needed in the Syrian conflict. Thus there is a short-term need to stop beating the drums of war while at the same time stressing the condemnation of the use of chemical weapons. There is a need for longer-term efforts to start serious negotiations with as many factions of the opposition as possible and the Syrian government to create government structures more fully representative of the multi-cultural Syrian society.

René Wadlow is President and Chief Representative to the United Nations Office at Geneva of the Association of World Citizens.

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