Wednesday, August 28, 2013
This week, there appear to be credible reports of the use of chemical weapons by the Syrian regime of Bashar al Assad. Earlier this week, United Nations Secretary General Ban Ki Moon called the use of chemical weapons against the civilian population in Syria a "crime against humanity." United States Secretary of State John Kerry called the indiscriminate use of chemical weapons against the Syrian population "a moral obscenity."
Assuming the evidence continues to show that the Assad regime has used chemical weapons, the question is raised - how can Assad be held accountable under international law? Syria is not a member of the International Criminal Court so that ICC would not have jurisdiction over him unless the matter were referred to the ICC by the UN Security Council. Such a referral is highly unlikely at the moment given the use or threatened use of the veto power by Russia and China with respect to recent proposed UNSC resolutions regarding Syria. Syria is also not a party to the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (Chemical Weapons Convention) banning the use of such weapons.
It may be argued that the use of chemical weapons is prohibited by customary international law, thereby binding Syria regardless of its treaty obligations. Secretary Kennedy suggested as much when he talked "the large-scale, indiscriminate use of weapons that the civilized world long ago decided must never be used at all." Likewise, UN Secretary Ban Ki Moon's characterization of the use of chemical weapons as a "crime against humanity" suggests the view that Assad's actions violate customary international law. However, there may be no forum in which to hold the Assad regime accountable. Hence, the discussions in the international community about military action - both to stop the further large-scale loss of civilian lives as well as to bring accountability to Assad. No easy answers here.