Enab Baladi – Baraa Khattab

On November 30, 2023, the Day of Remembrance for All Victims of Chemical Warfare, Syrian organizations and survivors who witnessed chemical attacks issued a public call to create an exceptional chemical weapons tribunal (ECWT) to prosecute the use of chemical weapons and to hold all perpetrators of chemical attacks to account.

A group of Syrian human rights defenders, humanitarian and civil institutions, as well as associations and groups of victims, their families, witnesses, and survivors of chemical attacks in Syria, called for the establishment of an exceptional tribunal for chemical weapons.

The demands come after more than two years of consultations with legal and technical experts, governments, and international organizations, and based on the need to combat the gap of impunity arising from the use of chemical weapons in Syria, and with the aim of deterring their use in the future.

The request came with the aim of prosecuting users of chemical weapons internationally in cases where it is not possible to resort to existing international criminal judicial forums, as is the case in Syria.

The establishment of such a court will provide a space to decide on the evidence that has been collected and for which there is no international judicial outlet, in addition to providing a level of justice for victims and contributing to holding perpetrators accountable.

To establish this court, states will act collectively within the framework of their rights as states, in accordance with inherent obligations set out in international treaties and norms and in line with numerous UN Security Council and General Assembly resolutions that unequivocally call for accountability for the use of chemical weapons.

Bridging the impunity gap

The countries that would establish the proposed Special Court for Chemical Weapons would bridge the gap of impunity for the use of these weapons in cases where the International Criminal Court (ICC) is prevented from acting.

In this way, states write a new history, protect their security, defend the victims, and reinforce the fundamental prohibition of these weapons, both now and in the future.

Fadel Abdul Ghany, Chairman and founder of the Syrian Network for Human Rights (SNHR), told Enab Baladi, “We directed our letter to the countries in order to establish this court, considering that chemical weapons are weapons of mass destruction, and because there are UN and international reports that have proven the Syrian regime’s use of chemical weapons, in addition to the Security Council and General Assembly resolutions condemning the Syrian regime’s use of weapons, which are the main driver of the initiative to establish a court.”

Abdul Ghany added, “To ensure that the Syrian regime and those involved in the use of chemical weapons in Syria do not remain unaccounted for, we called for the establishment of an exceptional court for chemical weapons.”

SNHR’s head explained that the demand to establish the tribunal is still within the scope of the initiative, and its establishment requires a long time and the combined efforts of survivors, victims’ families, and organizations.

Ibrahim Olabi, head of the Syrian Legal Development Program (SLDP) and a key figure in the initiative, said that diplomats from at least 44 countries from all continents participated in the discussions, some of them at the ministerial level.

The tribunal could be established with a group of six to eight geographically diverse states that are serious and aligned on chemical weapons and accountability.

Once established, the court could open its membership more widely, on the basis that equitable geographical representation is essential, to reflect the universality of the rule.

Based on extensive research into indictments issued by previous courts and tribunals and consultation with experts, once states agree to establish the court, it is estimated that it will take approximately one year to establish it and as much to issue the first indictment, given the amount of evidence collected to date, according to The Syrian Center for Media and Freedom of Expression (SCM).

The prohibition of the use of chemical weapons is, in theory, one of the most universally accepted standards in international law.

Despite this fact and the extensive evidence collected by international bodies, such as the Organization for the Prohibition of Chemical Weapons (OPCW) and the International, Impartial, and Independent Mechanism, the use of these weapons has appeared on an unprecedented scale in recent years, especially in Syria.

It was not possible to resort to the International Criminal Court in Syria, which is the usual path to consider such crimes, due to the use of the veto power in the United Nations Security Council in 2014.

Authority to prosecute individuals

The calls of the victims and the international community for accountability remain unanswered, with a huge amount of reports condemning the Syrian regime’s use of chemical weapons, which prompted demands for the existence of an international tribunal for the use of these weapons, according to the Syrian Justice and Accountability Center (SJAC).

The call for a court stems from a global norm supported by strong treaties and resolutions in the UN Security Council and UN General Assembly, as well as the OPCW.

Under a multilateral treaty signed by several states from all over the world, the court will be established, and this geographical diversity will further enhance its legitimacy, according to the SJAC.

These states would come together to prosecute the crimes collectively, and the crimes could be prosecuted individually if the states wanted to, by “delegating” their existing right, under various treaties as well as universal jurisdiction, to prosecute chemical weapons crimes.

These states can also undertake collective prosecution regardless of their actual practice of prosecuting those crimes domestically because they are delegating their sovereign right to prosecute those crimes, a right that exists for all states, rather than the way they choose to do so domestically.

Syria is violating its obligations

Due to the Syrian regime’s violation of the OPCW convention, to which Each State Party to this Convention undertakes never under any circumstances to develop, produce, otherwise acquire, stockpile or retain chemical weapons,” holding the Syrian regime accountable has become a demand for thousands of victims and dozens of international organizations.

On November 30, members of the OPCW criticized Syria for violating its international obligations to disclose and hand over the banned toxic ammunition it possesses. Members also called for a ban on the transfer of chemical materials to Damascus.

The members of the organization in The Hague adopted a resolution in response to Syria’s non-compliance with its obligations, and to confront the danger of the spread of chemical weapons munitions in and outside Syria, Reuters reported.

The resolution called for prohibiting “any direct or indirect transfer of certain precursor chemicals, dual-use chemical manufacturing facilities, and related equipment and technology to Syria,” in addition to providing support and cooperation with criminal investigations into the illegal use of chemical weapons in Syria.

The Syrian regime denies using chemical weapons in Eastern Ghouta, Damascus, Khan Shaykhun or in any other Syrian city.

On November 15 and in a historic judicial precedent, for a country to issue an international arrest warrant against the head of another state while he was in power, French criminal investigation judges issued arrest warrants against Bashar al-Assad.

International warrants were also issued for the arrests of al-Assad’s brother, Maher, the de facto chief of a Syrian elite military unit, and two army generals.

The Paris court’s unit concerned with crimes against humanity has been investigating the chemical attacks on Damascus suburbs since 2021.

In 2013, Syria agreed to join the OPCW and give up all its weapons.