S. Mushfiq Murshed
On 21 August 2013 the Syrian President, Bashar al-Assad attacked his own citizens in Ghouta through rockets containing Sarin, a nerve agent. It is estimated that well over 1000 people perished in this attack. Global indignation followed. Under threat of military action from the United States, the Syrian regime leaned on Russia, their longtime ally, for support. The Russians tried to spin the incident by placing the blame on the rebels as an attempt to discredit the government. This strategy did not hold. Concerted diplomatic efforts, therefore, followed. Eventually, “in September, Syria filed the appropriate paperwork, self-reported 23 chemical-weapons sites, and opened their doors to inspectors from the OPCW. On October 14, Syria officially entered into the CWC.”
Global outrage over the Syrian government’s attempt to eradicate a rebellion through the use of chemical weapons clearly illustrates that any strategy that provides space for chemical or biological weapons in a countries arsenal is flawed and will not be tolerated. The repulsion to this form of warfare has been internalized in the psyche of individuals and nations over the span of a century. The suffering associated with chemical and biological warfare has instilled fear and abhorrence in our mindset. Visuals of the horrific outcome of CB warfare in WWI, Halabjah and other similar incidents have been entrenched in the human subconscious. Yet, there are exceptions. Basic human repulsion towards these weapons of mass destruction (WMDs) have been sidelined for Geopolitical ambitions. Ideological, religious, political and military considerations have outweighed the immoral aspects of obtaining and using chemical and biological weapons (CBW).
CBWs and the state
Protocols, Conventions and Statutes.
Chemical weapons have been used through the ages in small doses such as poisoning of wells or ‘hurling burning sulphur pitch’ over walls. However, its utilization in modern warfare in WW1 labelled it as a weapon of mass destruction. “The first use of modern chemical weapons was in Ypres, Belgium. The Germans released chlorine gas from thousands of containers which created a wind-borne chemical cloud. Chlorine gas is a choking agent. In other words, it causes fluids to build up in the lungs. Death from inhaling this vapor can either be instantaneous or can take up to three hours. It is estimated that 5,000 French and Algerian soldiers died due to inhalation of this gas in Ypres.”
This incident culminated in a chain of events that eventually had both sides using chemical weapons and resulted in 1,300,000 casualties. 90% of all casualties from chemical warfare in WW1 came from the use of mustard gas. This is a blister agent which ‘burns the skin, eyes, windpipe and lungs.’ This gas causes immense pain and suffering and incapacitates the enemy but does not usually kill them.
The magnitude of atrocities committed during the war led to Article 171 of the Treaty of Versialles which states: “The use of asphyxiating, poisonous or other gases and all analogous liquids, materials or devices being prohibited, their manufacture and importation are strictly forbidden in Germany”. This, in turn, was followed by the International community establishing the Geneva Protocol of 1925 which prohibited the use of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare.
“The Protocol has been respected in nearly all the hundreds of armed conflicts that have taken place since 1925. The handful of well-known and high-profile violations have provoked widespread international condemnation and in some cases criminal prosecution.” (Chemical and Biological weapons- 08-04-2013 – ICRC). The countries that have used chemical weapons between the two World Wars include Italy (against Ethiopia in 1935) and Japan (against China in late 1930s). The Japanese also used biological weapons against allied forces in China between 1937 and 1944. In addition, they experimented on and killed more than 3,000 human subjects. No chemical and biological weapons other than the ones used by Japan were used in World War II, although poisonous gases were used in German concentration camps. The primary reason, undoubtedly, for refraining from attacks using CBWs was the fear of reprisals as both sides had accumulated enough chemical and biological arsenal to develop an attitude of deterrence and thereby adopt a policy of no-first-use. Nonetheless, the relevance of the Geneva Protocol of 1925 also had an impact as it established ‘a new and clear norm in international relations’
Since World War II chemical weapons have been used by a few countries. The Egyptians used chemical weapons like choking and mustard agents in Yemen’s civil war (1963, 1965 & 1967). The Egyptians are considered as the first Middle Eastern country to have acquired and used chemical weapons. The Soviets used chemical arms such as mustard and incapacitating agents against the Afghan Mujahideen (1978-1992). In 1987 chemical weapons were used by Libya against rebels in Chad. However, the most extensive use of chemical weapons was in the Iran-Iraq war (1980-1988). Saddam Hussein’s regime then went on to use chemical weapons against its own people, the Iraqi Kurds. In Halabjah (1988) an estimated 5000 people were killed through such an attack, many of them civilians.
The 1925 Protocol was undoubtedly ‘a landmark in international humanitarian law.’ ‘The United Nations General Assembly has adopted several resolutions in which it calls for strict observance by all states of the principles and objectives of the Geneva Protocol of 1925, condemns all actions contrary to those objectives and invites all states to accede to the Protocol.’ These include ‘resolutions 2162B (XXI) of 5 December 1966, 2454A (XXIII) of 20 December 1968, 2603B (XXIV) of 16 December 1969, and 2662 (XXV) of 7 December 1970. Resolution 2603A (XXIV) of 16 December 1969 gives an interpretation of the Geneva Protocol of 1925.’
However, as the incidents mentioned above indicate, more needed to be done. A more extensive and intrusive policy needed to be implemented to ensure that no further production and stockpiling of such weapons would be permitted in the global arena. Two other conventions, therefore, have been established, namely: the Biological and Toxins Weapons Convention (BWC) in 1972 and the Chemical Weapons Convention (CWC) in 1993 to complement and further enhance the protocols established in 1925.
The two treaties combined codify ‘prohibitive norms against the use of’ chemical and biological weapons. They ‘represent a crucial barrier against the use of disease and poison against humanity.’ Unlike the NPT which does not restrict nuclear weapon states (those states that are allowed to possess nuclear weapons under the NPT) in developing, acquiring, testing and stockpiling nuclear weapons, these two conventions are comprehensive ‘disarmament treaties’, whereby, member states have no choice but to relinquish production and destroy stockpiles.
As observed in Syria, the CWC through the offices of the OPCW, verifies compliance through:
National declarations of data on industrial chemical production;
Continuous and routine inspections of facilities declared under the treaty and, on occasion, the treaty allows for
Short-notice challenge inspections, intended to resolve concerns about compliance of any facility on the territory of the State Party.
The success of OPCW earned the organization a nobel peace prize in 2013. Out of the seven countries that declared having chemical weapons, three have completely destroyed their chemical weapons. ‘As of July 2013, the Organization for the Prohibition of Chemical weapons had conducted 5,167 inspections in 86 states.
The Organization had inventoried and verified all declared chemical weapons stockpiles and verified that all declared chemical weapons facilities are inactive in the states that have ratified the convention.’
In addition to the above mentioned Conventions, the Rome Statute established the International Criminal Court (ICC) in 2002 to prosecute individuals for war crimes, genocide, and crimes against humanity. Although the Rome Statute did not mention chemical weapons by name, it did, however, in Article 8(2)(b) dealing with war crimes, include three provisions which somewhat add up to the same in International conflict. They are Article 8(2)(b)xvii: “Employing poison or poisonous weapons;” xviii: “Employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices;” and 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.”
International Treaty Laws and the Legality of Chemical Weapons.
Syria – A case study.
The recent events in Syria have taken the appropriate turn as the Government has acceded to the CWC and opened the doors to OPCW for the disarmament of their chemical weapons. However, if this path had not been chosen then what legal recourse would the global community have to punish the regime for using chemical weapons on its people?
Syria is a signatory to the Geneva Protocol of 1925. However, the limits of the Protocol do not prohibit Syria from using chemical weapons within its borders. Furthermore, the treaty does not address issues pertaining to the development and stockpiling of such weapons. This blatant shortcoming was one of the few reasons that other CBW conventions were introduced.
Syria is also a party to the Geneva Conventions of 1949 which deal with laws of warfare in an international conflict. Common Article 3 (CA3) is a common clause in all four Geneva Conventions which deal with noninternational armed conflicts. There is, however, no mention of chemical warfare. The Additional Protocol II also does not address the use of chemical weapons. Syria, therefore, was not prohibited by either the Geneva Conventions or Protocol II to use chemical weapons in an internal arms conflict.
To address the obvious deficiencies in these Protocols and Conventions the CWC was established. However, since Syria had not signed or ratified the Convention, OPCW was restricted in its efforts until the Syrian government officially entered the CWC on 14 October 2013.
The provisions for the use of chemical weapon in the Rome Statute under Article 8(b) are also restricted to International warfare. In the June 2010 Review Conference of the Rome Statute, Belgium proposed an amendment to criminalize the use of chemical weapons in all conflicts, whether international or noninternational. Syria, however, remains unaffected as it has not ratified either the Rome Statute or the amendment. The ICC, therefore, has no jurisdiction in the country.
A way to circumvent the jurisdiction issue would have been if, as mentioned under Article 13(b) of the Rome Statute, the United Nations Security Council (UNSC) referred a case to the ICC. To do this, the UNSC would first have to pass a resolution under Article VII of the UN Charter. The obvious obstacle in taking that route would be the veto powers of Russia.
Despite a list of Protocols and Conventions and Statutes, the Syrian government was not under any immediate threat of criminal charges being placed on them for the use of chemical weapons in their internal civil conflict. With Russian and Chinese support, they were also sufficiently shielded from any resolution that could have been passed by the UNSC that may have been detrimental to their wellbeing. Yet, they did eventually capitulate to global demands and a UNSC resolution was passed whereby the government officially accepted the CWC and intervention by the OPCW. The prime reason for this action could only be the aggressive stance that the US had taken and the negotiations, by the Russians, that followed to counter that threat.
This scenario clearly illustrates that it is essential to make the CWC a universal document. There are no mixed messages. The Convention is clear in its agenda, thereby, the possibility of manipulation of state members is minimalized. ‘Article 1 – General Obligations’ of the Convention clearly states:
“1. Each State Party to this Convention undertakes never under any circumstances:
(a) To develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone;
(b) To use chemical weapons;
(c) To engage in any military preparations to use chemical weapons;
(d) To assist, encourage or induce, in any way, anyone to engage in any activity prohibited to a State Party under this Convention.
2. Each State Party undertakes to destroy chemical weapons it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.
3. Each State Party undertakes to destroy all chemical weapons it abandoned on the territory of another State Party, in accordance with the provisions of this Convention.
4. Each State Party undertakes to destroy any chemical weapons production facilities it owns or possesses, or that are located in any place under its jurisdiction or control, in accordance with the provisions of this Convention.
5. Each State Party undertakes not to use riot control agents as a method of warfare”
Concerted diplomatic efforts need to be applied through economic and military pressure and concessions to motivate the remaining countries to ratify this convention. Furthermore, the Rome Statutes need to introduce further amendments that will support the CBW conventions by prosecuting any individual through the ICC that violates their articles. Going on a tangent here, the BWC also needs to be given some semblance of control through the development of a proactive organization (such as the OPCW for the CWC) so that it can assure implementation of its Articles.
Reasons for Proliferation of Chemical and Biological Weapons.
Despite strong resistance from arms control advocates and a general view that CBWs are immoral and mostly inefficient, proliferation of such weapons by some nations remain unabated. The leadership of a country has to cross a certain ‘psychological threshold’ whereby it rejects international norms that prohibit CB warfare. There undoubtedly have to be certain scenarios that give the leadership of a country the room to propagate obscurantist policies that advocate the induction of such weapons in their offensive strategies.
The decision to pursue this route may be forced due to perceived or actual threats from known adversaries or this same approach may be willingly followed in an attempt to gain international recognition as a formidable military force. In 1988, the speaker of the Iranian parliament, Hashemi Rafsanjani, described chemical and biological weapons as “the poor man’s atomic bomb”. Furthermore, some believe that the acquisition of CBWs provide a certain level of deterrence, whereas, on the flipside, others feel that their utility lies in their early deployment in a conflict to ensure a quick victory in a scenario that would otherwise be long drawn out.
Irrespective of the motive behind the pursuit of such weapons, the political leadership cannot implement this strategy without the services and support of scientists and engineers to develop such weapons and military leadership to effectively deploy these weapons.
Political and military leadership along with scientists usually adopt a nationalistic/Machiavellian approach to justify their commitment towards the proliferation of CBWs.
In science, for instance, many “scientists who explicitly recognize the ethical conflicts involved in work on weapons argue that a higher ethical principle – the imperative of defending ones country or of helping to curb what is considered evil or destructive, leads to a decision to participate in such work.” (Biological weapons Research and Physicians: Historical and ethical Analysis, by Victor W. Sidel M.D.). Other scientists argue “that their work was designed to reduce the devastation of war. For example, Dr. Knut Krieger, while working on non-lethal chemical and biological weapons in the 1960s, argued in defense of his work that the research would lead to decreased fatalities: … ‘if we do indeed succeed in creating incapacitating systems that are able to substitute incapacitation for death it appears to me that, next to stopping war, this would be an important step forward.’ “(ibid). Others simply justify their work on such weapons through the doctrine of deterrence.
Any justification is inadequate when compared to the indiscriminate suffering that is associated with such WMDs. All those involved in the proliferation process of such weapons, be they political and military leadership, scientists, researcher or engineers, should be treated as criminals and prosecuted in the ICC. A strong example needs to be established to curb such tendencies.
CBWs and Non-State Actors.
“The Aum Shinri Kyo sect that released the chemical agent sarin on the Tokyo subway had a surprisingly well-developed technical infrastructure. This included front companies for purchasing materials and equipment, well-equipped laboratories, extensive chemical manufacturing facilities and several hundred tonnes of 40 different kinds of chemicals. One estimate suggested that the materials together could have produced about 50 tonnes of chemical weapons agents to kill as many as 4.2 million people.”
Al Qaeda has also shown interest in the development and utilization of Chemical and Biological weapons. There is documented proof of ongoing research on chemical weapons by Al-Qaeda. They had planned and then aborted a chemical attack on the New York City subway system in 2005. In addition, they initiated chlorine attacks in Iraq in 2007. The Al-Qaeda not only infuse decontextualized religious doctrine in their propaganda to motivate and attract Muslim scientists, biologists and physicists to join their cause but also obtain sanctions from radical clerics to legitimize mass civilian casualties.
Furthermore, according to a news report by Dawn, the affiliates of Al-Qaeda, the Tehreek-e-Taliban Pakistan (TTP), have started using chemical toxins in their bombs which cause the survivors of their attacks lethal injuries and infections that are not curable by antibiotics. It is apparent from these attacks that their expertise in manufacturing explosive devices with lethal devices is evolving. In addition, the more relevant lesson that can be extracted from such cases is the direction in which the Taliban bomb making expertize is moving. Their obvious objective is to develop chemical weapons that can cause as much suffering as possible and instill as much terror as possible in as many people as possible. After all, according to them, all those who are not with them are infidels and, therefore, potential targets of future terrorist attacks.
The unfortunate reality is that “it would be possible to produce lethal chemical or biological weapons in sufficient quantities for use in terrorist attacks with far more modest resources than those of the Aum Shinri Kyo sect.” the Al Qaeda or the TTP. “According to an OTA study, the level of technological sophistication required would be comparable with that already seen in sophisticated bombs that have been used against civilian aircraft. Another source states that the technical challenge is equivalent to the clandestine production of chemical narcotics or the refinement of heroin.”
A lot has been done, yet much more needs to be done in order to eliminate the threat of CBWs originating either from states or non-state actors.
The recent Syrian crisis has shown the path that needs to be followed by all those nations that continue to develop CBWs. However, the other aspect that has been highlighted is that despite a range of protocols, conventions and statutes in place, loopholes exist. These gaps need to be filled.
Concerted diplomatic efforts need to be applied through economic and military pressure and concessions to motivate the remaining countries to ratify the CBW conventions. The BWC also needs to be given some semblance of control through the development of a proactive organization (such as the OPCW for the CWC) so that it can assure implementation of its Articles. Furthermore, the Rome Statutes need to introduce further amendments that will support the CBW conventions by prosecuting any individual through the ICC that violates their articles.
As far as the use of these weapons by non-state actors is concerned the threat is genuine. An escalation in interstate intelligence cooperation and an extensive monitoring mechanism for chemicals and toxins need to be established. Nations that have not ratified the CBW conventions also need to be closely observed to make sure that no technical and material assistance is passed on from them to terrorist groups.
An interesting point to ponder upon is that most cases of CBW attacks by states after WWI have been associated with countries that possessed despotic regimes where dissent by citizens was considered heresy by the ruling elite. The fact that no country with a democratic government has used CBWs in warfare since WWI indicates that the intolerance of the people towards the use of such heinous weapons is real.
 The author is the editor-in-chief of Criterion Quarterly.