Enab Baladi – Hani Karazi

The issue of the Syrian regime’s use of chemical weapons has resurfaced after the UN Security Council held a meeting last week discussing the chemical weapons file in Syria, presenting new evidence of Bashar al-Assad’s violations in this field. This raises questions about how to proceed with this issue to hold the regime accountable for its crimes.

The Syrian regime carried out 217 chemical attacks in various Syrian provinces since the first documented use of this weapon on December 23, 2012, until April 7, 2024, causing the death of 1,514 people, including 214 children and 262 women, and injuring 11,080 others, according to documentation by the Syrian Network for Human Rights (SNHR).

Despite all these violations, the Syrian regime continues to evade punishment. Several international entities have moved in recent years to condemn the regime and seek to hold it accountable, the most recent being in November 2023, when an arrest warrant was issued against Bashar al-Assad, his brother Maher, and two of his top aides for carrying out chemical attacks on Eastern Ghouta in 2013. This file then languished for months before being reopened last week in the Security Council.

US-UK move against the regime

The chemical weapons issue of the regime resurfaced in the UN Security Council, which discussed developments in Syria’s chemical weapons file in a meeting on June 11.

Laura Dix, a British Foreign Office official, accused the Syrian regime of still hiding thousands of munitions and hundreds of tons of chemical materials, pointing out that sample analyses collected at two sites in Syria in April 2023 indicate more undisclosed processing and production activities of chemical weapons.

Robert Wood, the US Deputy Permanent Representative to the United Nations, stated that Damascus continues its “blatant” disregard for its obligations to comply with the Chemical Weapons Convention and Resolution 2118, emphasizing that the regime has yet to fully disclose or destroy its chemical arsenal. He stressed that “there can be no impunity for the use of chemical weapons.”

The United Nations High Representative for Disarmament Affairs, Izumi Nakamitsu, also warned in last week’s Security Council session of “serious concerns” about finding “unexpected chemical materials” in samples collected from Syria between 2020 and 2023 at several declared sites.

Commenting on the recent Security Council session on the regime’s chemical weapons file, Bassam al-Ahmad, director of the Syrians for Truth and Justice (STJ) organization, said that “although the recent Security Council session was not to vote on a resolution condemning the Syrian regime for its crimes, merely confirming by an international entity like the Security Council that al-Assad used chemical weapons and presenting evidence to condemn him is a positive indicator and a new gateway in the necessary accountability file.”

The movement on the chemical weapons file in recent days was not limited to the Security Council session, as a report by the Fact-Finding Mission (FFM) of the Organization for the Prohibition of Chemical Weapons (OPCW) contradicted accusations by the regime that the Islamic State used chemical weapons in two incidents in the Hama countryside in 2017.

Al-Ahmad told Enab Baladi that the report is “an indication that al-Assad provides misleading information to the investigation committees to divert accusations away from himself and place them on other parties in the Syrian conflict, while also increasing pressure on him for accountability.”

Al-Ahmad noted that the regime has tried for years to allege that opposition factions launched chemical weapons attacks, but international investigation committees did not acknowledge this and instead proved al-Assad’s involvement in chemical attacks. The Islamic State was condemned only once for using mustard gas in an attack on Marea in 2015.

Dead end towards International Criminal Court

Over the past years, the UN Security Council has repeatedly attempted to refer the Syrian file to the International Criminal Court (ICC), but failed due to the Russian-Chinese veto, prompting some countries and human rights organizations to hold the regime accountable through European courts, which allow prosecuting criminals outside their territories based on universal jurisdiction.

In November 2023, the French judiciary issued an arrest warrant against the Syrian regime’s president, his brother Maher, and two of his top aides for carrying out chemical attacks on Eastern Ghouta in 2013.

However, international criminal law attorney al-Mutassim al-Kilani stated that under international law, an arrest warrant cannot be issued against a sitting head of state or a trial conducted in absentia because this violates international agreements related to diplomatic immunity for serving heads of state. Notably, the French judiciary justified its decision by stating that committing such crimes as using chemical weapons voids all laws and customs related to immunity.

Al-Kilani added to Enab Baladi that “based on that, the French judiciary will need to cancel the international arrest warrant against al-Assad based on the appeals court’s decision. Nevertheless, lawyers and human rights associations will attempt to appeal the court’s decision,” pointing out that all these attempts are to confirm that the principle of impunity is over.

The director of Syrians for Truth and Justice organization said that the inability to refer the Syrian file to the International Criminal Court is due to two reasons: the Russian-Chinese veto in the Security Council against bringing regime officials to the ICC, and the second reason is that Syria is not a member of the Rome Statute.

In 1998, 108 countries signed the Rome Statute of the International Criminal Court (ICC). Many countries did not sign the treaty, including Syria and Iraq, meaning the ICC does not intervene in cases on Syrian land, while it can automatically exercise jurisdiction over crimes committed on the territory of any member state or committed by nationals of any member state.

Special tribunal for chemical weapons crimes

With the road to the ICC blocked, Syrian non-governmental organizations called in November 2023 for the establishment of a “special court” to prosecute users of chemical weapons in Syria. This came in a statement from the Chemical Weapons Victims Association.

The calls for establishing a special tribunal to try the regime stem from the fact that special tribunals have previously been held, such as those formed to prosecute war criminals in Yugoslavia, Rwanda, and Sierra Leone, as well as in Lebanon regarding the assassination of the late Prime Minister of Lebanon, Rafik Hariri.

According to the statement, the proposed special tribunal could examine all chemical weapons cases in Syria and other cases currently blocked from the ICC due to political deadlock.

The statement noted that the special court would be structured to complement existing international institutions, particularly the ICC, and would be able to operate when the ICC’s authority is obstructed.

Thair Hijazi, a member of the Chemical Weapons Victims Association, sees the demand by a group of Syrian organizations and legal professionals to establish an international special court to hold the Syrian regime accountable for using chemical weapons as a “very important step in the accountability file amid the blocked road to the ICC.”

Hijazi told Enab Baladi that work on this special court began about three years ago, “with good and constructive steps taken in this regard. We hope soon there will be an actual international special court to hold the Syrian regime accountable for using chemical weapons, but so far, there have not been any real developments towards establishing that court due to the lack of international cooperation to achieve this important step.”

The Pro Justice website spoke about difficulties in establishing that court given the practical, political, and financial feasibility for its establishment and its inability to continue in the absence of cooperation from the Syrian regime and partner countries.

The website added, “Even if we hypothetically get UN approval to form the special court for Syria, other executive obstacles would surface, such as defining the locations, choosing the officials, and ensuring cooperation from countries, especially since most countries that were against the Syrian regime’s violations yesterday are more accepting of its existence today compared to the terrorist organizations that these violations generated.”

The site cited the case of trying al-Assad for his involvement in Hariri’s assassination to point out the futility of such courts. Despite almost 20 years since that crime and 17 years since the International Court in The Hague started its work, “the head of the Syrian regime and Hassan Nasrallah remain free, executing their crimes against Syrians to the fullest extent.”

European tri-path against al-Assad

In the absence of a realistic prospect for independent justice and accountability within Syria and the blocked road to the International Criminal Court, victims’ relatives have turned to other countries like Germany, Sweden, and France to investigate regime violations. They have filed cases in those countries to conduct investigations into torture, crimes against humanity, and war crimes.

On October 7, 2020, Justice Initiative, the Syrian Center for Media and Freedom of Expression, and the Syrian Archive Initiative filed a criminal complaint with the German Federal Prosecutor against Syrian officials regarding the use of sarin gas in several Syrian cities.

The three organizations returned in March 2021 to file a similar complaint before investigative judges in France, including extensive testimonies from many survivors of chemical attacks the Syrian regime launched on Douma and Eastern Ghouta in August 2013, making it the first criminal complaint against Bashar al-Assad in France over chemical weapons use.

Swedish police also filed a criminal complaint in 2021 to hold the Syrian regime accountable for using sarin gas in two attacks, the first on Eastern Ghouta in 2013 and the second on Khan Sheikhoun in 2017.

Thair Hijazi, a member of the Chemical Weapons Victims Association, stated that the case in France progressed legally under the state’s extraterritorial jurisdiction because of a victim with dual French and Syrian citizenship during the Eastern Ghouta attack in 2013, granting the French judiciary authority to open the investigation. He added, “We in the association managed, as individuals injured by that attack, to act as civilian witnesses against al-Assad in that case.”

Hijazi added that the lawsuit’s process in France is going well, “and we expect future trials in absentia of those involved in the chemical weapons attack, as happened last month in the al-Dabbagh case, which resulted in a French absentia ruling against three of al-Assad’s officials.” He stressed the importance of following up on the three lawsuits filed in France, Germany, and Sweden, supporting them with evidence and witnesses to achieve justice.

The UN Security Council unanimously voted on September 27, 2013, in favor of Resolution 2118, which includes procedures to expedite dismantling the Syrian regime’s chemical weapons program, subjecting it to rigorous verification. The resolution called for its full implementation as quickly as possible, but the regime did not comply with its commitments and continued chemical attacks against Syrians.