The international community is ratcheting up efforts to hold the Syrian government accountable for violating international law by its use of chemical weapons, a particularly gruesome and indiscriminate type of warfare. In April, an overwhelming majority of signatories to the Chemical Weapons Convention (CWC) voted to suspend Syria’s rights and privileges under the treaty. The rebuke was a modest step, but it paves the way for further measures, and firm action will be crucial to hold Syria to account and to reinforce the longstanding – and dangerously eroding — global prohibition against chemical weapons use.

In 2013, the Syrian regime launched a horrific nerve gas attack against neighborhoods in Ghouta, outside Damascus, which was at that time controlled by anti-government forces. The brazen attack, which killed some 1,300 people, led the United States and Russia to pressure Syrian President Bashar Assad to join the CWC and allow for the removal and destruction of most of Syria’s chemical arsenal.

The near-universally accepted CWC prohibits the use, production, and stockpiling of chemical weapons. Yet international investigations have repeatedly concluded that Assad employed sarin – among the most lethal nerve agents – and, with greater frequency, chlorine gas as a weapon, including against civilians, in the years after Syria’s accession to the treaty and the destruction of its declared stockpile.

The Syrian regime has not been appropriately held accountable for these and other war crimes committed during its ongoing civil war. Russian and Chinese vetoes have blocked the imposition of multilateral U.N. sanctions on Syria, and efforts by smaller groups of states to economically pressure Assad to surrender Syria’s chemical weapons stockpile have fallen short. Damascus continues to flout its CWC obligations with impunity. Just this month, the U.N. disarmament chief relayed the new discovery of an undeclared (and unnamed) chemical warfare agent in Syria, indicating that the Syrian government may be continuing to expand its chemical weapons stockpile in further violation of the CWC.

The international community has exhibited a similarly lackluster response to incidents outside of Syria, such as the gruesome use of nerve agents like VX by North Korea in 2017 and Novichok by Russia since 2018, in both cases to poison critics or dissidents (and in the Russian case, catching innocent bystanders in its noxious net). If states and individuals believe chemical weapons can be used in flagrant violation of international law and with impunity, the norm against chemical weapons use will continue to erode in the years ahead.

Practical Effect of Syria’s Suspension

The April decision to suspend Syria’s rights and privileges means it is prohibited from voting or holding office in the decision-making bodies of the CWC or standing for election to the Executive Council, which leads the Organisation for the Prohibition of Chemical Weapons (OPCW), the governing body of the treaty. In practice, this means that while Syria’s representative to the OPCW, Minister Plenipotentiary Rania Al Rifayi, and her predecessor, Ambassador Bassam Sabbagh, participates regularly in the organization’s proceedings, she can no longer vote against future decisions involving Syria’s or another states’ status under the CWC. Syria also cannot serve on the Executive Council, meaning it won’t have a voice there in any council recommendations that the Conference of States Parties take more punitive action against noncompliant states. No other State Party has incurred a loss of rights and privileges since the treaty entered into force in 1997.

Although unprecedented, the move to suspend Syria’s rights and privileges under the CWC was not unexpected. In July 2020, after publication of a damning OPCW report that concluded that the Assad regime was responsible for a series of sarin and chlorine attacks in 2017, the OPCW Executive Council adopted a decision rebuking Syria’s chemical weapons program and calling for it to declare and dispose of its illegal arsenal. The OPCW imposed a 90-day deadline for the Syrian government to declare all remaining chemical agents, their precursors, and the facilities where chemical weapons are developed, produced, and stored. But Syria failed to meet that deadline.

Unsurprisingly, Syrian officials nevertheless called the April decision “illegitimate,” and suggested it may resist the demand by member States for its compliance with the treaty. Thus, without further steps to hold Syria accountable for its violations, the Assad regime could continue to maintain, expand, and employ its illegal chemical weapons arsenal as a terror weapon against opposition forces and civilians.

Among possible next steps, should Damascus still fail to comply, is for CWC signatories to refer Syria to the U.N. Security Council (UNSC). Under ordinary circumstances, the Security Council could take action against a State that flagrantly violates international law or threatens international peace and security. But in the Syria case, Russia has repeatedly used its veto power since 2013 to block international investigations of chemical weapons use in Syria and has tried to undermine the credibility of the OPCW and U.N. investigations. In 2017, Russia vetoed the extension of the joint U.N.-OPCW investigative mechanism (JIM), created by the UNSC in 2015 as the only body of its kind mandated to attribute responsibility for chemical weapons attacks in Syria.

Challenge Inspection

Another option, should Syria fail to comply, would be for CWC States parties to demand a challenge inspection in Syria pursuant to Article IX of the CWC to clarify outstanding inconsistencies with its stockpile declaration. A challenge inspection could confirm the presence of undeclared chemical weapons facilities or agents, which the OPCW largely suspects but for which the specifics remain unknown.

The process includes a series of expedited steps whereby CWC signatories may notify a potentially noncompliant state of their concerns and, eventually, conduct an inspection at any location or facility in question. Syria could lawfully refuse to comply with such a request for a challenge inspection, including by amending the inspection parameters. But such a refusal might at least reinforce the evidence at the Security Council of Syria’s intransigence and the foolhardiness of Russia and other defiant states continuing to defend Assad on this issue.

The OPCW also should work to immediately expand the mandate of its Investigation and Identification Team (IIT), which was established in 2018 to replace the JIM to investigate instances of chemical weapons use in Syria and determine responsibility for those attacks. The IIT is a sub-organ of the OPCW, meaning that its existence as an investigative and attributive body is not in any way subject to Security Council vetoes. The IIT’s inaugural report, which found the Syrian government responsible for a series of incidents in April 2017, spurred the Executive Council’s July 2020 decision and directly influenced States parties’ April decision to suspend Syria’s rights and privileges under the CWC.

Moving forward, the IIT’s mandate should be expanded to include all instances of chemical weapons use, in any country, as another measure to help reinforce the global norm against chemical weapons use and ensure that all perpetrators – as in the above-mentioned Russian and North Korean cases — are held accountable. The organization’s Executive Council could put forth a recommendation to the Conference of States Parties to expand the IIT mandate, and, because the council and the conference adopt decisions by majority, Russia would be unable alone to thwart a majority vote in favor.

Beyond strengthened accountability under the CWC, however, restoring the normative and legal prohibitions against chemical weapons use also will require the use of criminal prosecution to hold perpetrators to account. Chemical weapons use is illegal under international law, as outlined not only by the CWC, but also by the Geneva Protocol and the Rome Statute of the International Criminal Court (ICC).

Regardless of whether the Syrian government chooses to adhere to the April decision and return to compliance with the CWC, Assad should be prosecuted as a war criminal for his regime’s repeated use of chemical agents against civilians. Calls to criminally prosecute Assad for the atrocities committed throughout the Syrian civil war have been raised for many years. In France and Germany, prosecutors are considering the feasibility of nationally prosecuting Assad for chemical weapons attacks under the principle of universal jurisdiction, which could serve as an alternative avenue to the ICC. It’s unlikely that steps to this end could be taken in the near term, but persistent pressure is necessary to build political momentum for legal action.

Chemical weapons attacks in Syria have left thousands dead or injured. Of the 336 incidents documented as of February 2019, a number now certainly higher, about 98 percent of those attacks can be directly attributed to the Syrian government. The newly reported evidence of an undeclared chemical warfare agent suggests Assad will not bend to international condemnation of the regime’s repeated and indiscriminate attacks with chemical weapons.

The use of chemical weapons in Syria, and the international community’s failure to appropriately intervene, has dangerously weakened the norm against the use of such arms. That norm will erode and chemical weapons attacks in Syria and elsewhere will continue until perpetrators are held accountable.

IMAGE: A picture taken on February 1, 2018, shows members of Civil Defence removing the remnants of a rocket reportedly fired by regime forces on the outskirts of the rebel-held besieged Syrian town of Douma in the eastern Ghouta region. According to the Syrian Observatory for Human Rights, rockets were fired on the outskirts of Douma, and three people suffered respiratory problems, with local inhabitants speaking to the Syrian Observatory of a chemical attack. (Photo by HAMZA AL-AJWEH/AFP via Getty Images)