OPCW Confirms the Use of Chlorine as a Weapon in Syria in the Months of May, June and July 2014

I’m pleased to host a brief informational post from friend of ACL Onur Guven, who is a Researcher in Public International Law at the prestigious T.M.C. Asser Institute.

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OPCW Confirms the Use of Chlorine as a Weapon in Syria in the Months of May, June and July 2014

By Onur Guven, LLM

Based on the latest report of the OPCW Fact-Finding Mission in Syria on Alleged Chlorine Gas Attacks (FFM), the Organisation’s Executive Council (EC) concluded last Friday that “chlorine was used as a weapon systematically and repeatedly”. The chemical, which is a common household chemical and is also used for example in water purification installations, has been used as a weapon against villages in Northern Syria. The attacks have not yet been attributed to any of the parties to the conflict in Syria. Questions remain whether the Syrian government is in compliance with the Chemical Weapons Convention to which Syria has acceded in October 2013. The FFM brief on the OPCW website reports the use of chlorine gas as a weapon while HRW had documented numerous uses of aerial dropped barrel bombs throughout the war, including its report on the use of chlorine gas cylinders embedded in barrel bombs and dropped from helicopters. On the conclusions of the EC the OPCW Director-General comments that “[i]t is a tragic irony that a hundred years after chlorine was first used on the battlefield, its misuse to kill and terrorise unarmed civilians has again raised its ugly head.” It is interesting that the Director-General refers to WW1. Prior to and during WW1 the 1899 Hague Declaration already provided restrictions on the use of gas projectiles which have the sole object of diffusing asphyxiating or deleterious gases. The German Empire initially sought to avoid this restriction by releasing chlorine gas through cylinders when the wind was in the direction of enemy positions. The escalating gas warfare in WW1, including the use of other gases, led eventually to the adoption of the prohibition on the use of “asphyxiating, poisonous or other gases, and (of) all analogous liquids, materials or devices” as found in the 1922 Washington Naval Treaty (Article 5) and the 1925 Geneva Protocol. The same definition is used in Article 8, para. 2(b) (xviii), of the Rome Statute which recognises the “employment of asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices” as a war crime. Questions had been raised earlier on the interpretation of Article 8 in view of the drafting history of the Kampala Amendments and the text of the provision (see Alamuddin and Webb, Expanding Jurisdiction over War Crimes under Article 8 of the ICC Statute, Journal of International Criminal Justice, Vol. 8 (2010), pp. 1219-1243; Akande, Can the ICC Prosecute for Use of Chemical Weapons in Syria?, EJIL: Talk!, August 2013; and Heller, Syria, Chemical Weapons, and the Incoherence of the VCLT, Opinio Juris, August 2013). The question now is whether these recent cases will provide opportunity to clarify the issue.

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