Justice for Chemical Attacks

We are a group of Syrian victims, survivors, first responders, lawyers and human rights documenters calling for the creation of an international tribunal to prosecute the use of chemical weapons.

About

The prohibition on the use of chemical weapons is one of the most universally accepted norms in international law. Yet thousands of men, women, and children have been killed or injured by the use of these weapons in the past decade, mostly in Syria.

The International Criminal Court (ICC) can hold individuals criminally responsible for their involvement in the use of poison or poisoned weapons or other asphyxiating gasses, a type of chemical weapons that has been used in Syria as confirmed by the Organisation for the Prohibition of Chemical Weapons (OPCW). However, in situations – like Syria – where the ICC has been prevented from acting there is no recourse to criminal accountability at an international level for the victims and survivors of this crime. A norm eroding impunity gap is created.

On the 30th November 2023, on The Day of Remembrance for All Victims of Chemical Warfare, Syrian organisations and individuals affected by and working on chemical weapons, including survivors and witnesses of such attacks, issued a public call for the creation of an international criminal tribunal for chemical weapons use: The Exceptional Chemical Weapons Tribunal (ECWT).

Coming to light after more than two years of consultations with legal and technical experts, governments, and international organisations, and born from the need to combat the impunity gap arising from chemical weapons use in Syria, and designed to deter future use, establishing such a tribunal will provide a forum to air the evidence collected for which there is no international judicial forum, provide a level redress for victims, and contribute hold perpetrators to account.

States will be acting collectively within rights and obligations inherent in their Statehood, enshrined in international treaties and customs, and inline with many United Nation Security Council and General Assembly Resolutions unequivocally calling for accountability for the use of CWs.

States creating the proposed Exceptional Chemical Weapons Tribunal will firmly close the existing impunity gap for the use of the chemical weapons when the ICC is blocked from acting. In this way, States will be making history, protecting their security, standing up for victims, and once again, solidifying the fundamental prohibition against their use, both now and in the future.

Declaration

Statement Demanding the Establishment of an Exceptional Chemical Weapons Tribunal

We, a group of Syrian human rights, humanitarian and civil society organizations, associations and groups of victims and their families, and witnesses and survivors of chemical attacks in Syria, 

Stemming from:

  1. Having been directly exposed to deadly weapons that cause severe and long-term damage and suffering and dealing with their consequences on the ground and in international fora. We have responded, documented, advocated, litigated, and supported healing in possible cases;
  2. Our belief that the continued impunity for chemical attacks undermines the absolute prohibition of chemical weapons and the deterrent effect of accountability. This increases the likelihood of future use, and destabilizes the international system and trust in the international organisations established to protect international peace and security.

And based on:

  1. The prohibition of the use of chemical weapons under customary international law and international conventions; 
  2. The unprecedented and repeated violations of this universal norm in the Syrian conflict;
  3. The accumulation of incontrovertible evidence collected by the Organization for the Prohibition of Chemical Weapons (OPCW) indicating the responsibility of the Syrian authorities for nine attacks and the Islamic State of Iraq and ash-Sham for two attacks;
  4. The existence of the International, Impartial and Independent Mechanism established by the international community to collect and build on such evidence, in the absence of the jurisdiction of any international criminal court that can adjudicate the matter;
  5. The inability of the International Criminal Court to rule on this flagrant violation of international law because Syria is not a signatory to the law establishing the Court, and the attempt made by the United Nations Security Council to refer the case to the ICC having been vetoed in 2014;
  6. The ability of states within their sovereign rights to collectively hold to account perpetrators, and the existence of relevant international conventions that support and encourage this;
  7. The rigor of international resolutions from the United Nations Security Council and the United Nations General Assembly in the context of holding all individuals, entities and governments accountable for the use of chemical weapons, especially United Nations Security Council resolutions 2118, 2209, 2235, 2314, 2319 and General Assembly resolutions 68/182 (2013), 70/41 (2015), 71/69 (2016), 72/43 (2017), 182/73 (2018), 40/74 (2019), 169/74 (2019), 228/76 (2021).

Having since the first use of chemical weapons in Syria, as groups collectively and individually, taken the following steps: 

  1. Advocated towards holding all individuals or parties accountable for the use of chemical weapons;
  2. Despite the legal, administrative and psychological difficulties experienced by the victims of chemical attacks, put intensive efforts into domestic courts using the principle of universal jurisdiction or other local laws that support the fight against impunity for war crimes and crimes against humanity, in countries hosting Syrian refugees, including those who have survived chemical attacks, one of which led to the issuance of arrest warrants for Syrian President Bashar al-Assad, his brother Maher and two other senior officers before the French courts, which is an historical judicial precedent that deserves praise for the efforts and courage of victims and witnesses; 
  3. Initiated in-depth studies and discussions on what can be done to address the impunity gap at the international level, and advanced legal solutions that seek to overcome this situation;
  4. Drafted a proposal for the establishment of an international tribunal, with the aim of realising criminal accountability for established cases of chemical weapons use, which are not able to be tried by the ICC – a circumstance which applies to the Syrian case;
  5. Conducted intensive consultations at the level of legal experts, government representatives at technical and political levels, and with relevant international institutions on this proposal to ensure supportive legal and policy grounds.

Based on the above, we come together on 30 November, the International Day of Remembrance of all Victims of Chemical Warfare:

To call on states to establish an Exceptional Chemical Weapons Tribunal for internationally prosecuting the use of chemical weapons where there is no recourse to existing judicial criminal fora, as in Syria.

Supporters

We are a group of Syrian organisations and individuals who have witnessed, survived or responded to chemical attacks and are working to document, investigate and advocate for accountability for the use of chemical weapons in Syria. We have come together to call for the end of impunity through the establishment of the Exceptional Chemical Weapons Tribunal.

SAC
The Syria Campaign
SCM
SBC
Syria centre for legal studies
Restore The Norm
SAMS
AVCW
LDHR
Syria Civil Defence
Syrian Forum
SLDP
The day after
American Collection For Syria
Baytna
c4ssa
SNHR

Latest News

BBC The World Tonight Interviews ECWT supporters on paths towards accountability for the use of chemical weapons in Syria and around the world.

BBC The World Tonight interviews chemical weapons survivors Lubna AlKanawati and Mohamed Katoub, and lawyer Ibrahim Olabi (at 22:35) on the campaign for an exceptional chemical weapons tribunal, pathways to justice and their experiences as victims and survivors of chemical weapons.

L'Orient Today - Syrians lead push to create global chemical weapons tribunal

"Some kind of justice"- The Exceptional Chemical Weapons Tribunal proposal was launched on Nov. 30, the day victims of chemical attacks are remembered worldwide. The next step will be for states to agree on the wording of a treaty.

الجزيرة - سوريون يقودون جهود إنشاء محكمة دولية للأسلحة الكيميائية

أطلقت مجموعات حقوقية سورية وخبراء قانونيون دوليون اليوم الخميس في لاهاي مبادرة لإنشاء محكمة جديدة لمقاضاة من يتهمون باستخدام المواد السامة المحظورة، في حين قالت الشبكة السورية لحقوق الإنسان إن النظام السوري لا يزال يحتفظ بترسانة كيميائية وسط مخاوف من تكرار استخدامها مجددا.

FREQUENTLY ASKED QUESTIONS

  • The prohibition on the use of chemical weapons (“CW”) is, on paper, one of the most universally accepted norms in international law. Despite this fact, ample evidence gathered by international bodies, such as the Organisation for the Prohibition of Chemical Weapons (“OPCW”) and the International, Impartial, and Independent Mechanism (“IIIM”), demonstrates the use of those weapons on an unprecedented scale in recent years, mostly in Syria. In Syria, recourse to the International Criminal Court (“ICC”), the usual avenue that can look into such crimes, was blocked by a double veto in the UN Security Council in 2014, and calls for accountability by victims and the international community (e.g., in UN Security Council resolutions 2118, 2209, 2235, 2314, 2319 and UN General Assembly resolutions 68/182, 70/41, 71/69, 72/43, 73/45, 73/182, 74/40, 74/169, 75/193, 76/29 and 76/228), remain unanswered. This situation makes the case for having an international tribunal for the use of CW. This absence of justice propagates impunity for what was previously one of the most fundamental norms of international law, eroding the absolute nature of that norm, and making it more likely that this atrocity will recur in future.

  • The ICC is the usual forum for such a crime; however, in certain situations, such as Syria, recourse to it is blocked. Similarly, while the OPCW and IIIM can gather evidence of CW use, they do not have a mechanism to adjudicate upon this evidence. Therefore, there is no other foreseeable option to prosecute CW use internationally. Some states are pursuing prosecutions domestically. While these should be pursued, the use of domestic jurisdiction should feed into international alternatives when they are possible, as the latter sends a global reinforcement position towards of the norm (given that the collective efforts by governments); are more proactive than reactive ; are not limited by domestic and legal considerations; and have more resources available compared to domestic war crimes units that are often stretched. 

  • The proposed tribunal would be complimentary to existing international bodies, including the ICC. The tribunal would be structured such that it only becomes operational when ICC jurisdiction is blocked.  To ensure the primacy of the ICC is clear, its role as the usual forum for such matters could be referenced in the treaty preamble.  Further, the treaty could include an option for the proposed tribunal to transfer cases to the ICC, if it were to gain jurisdiction.  Further, senior experts and some governments also recall that the ICC is a court of last resort, and that it is entirely possible to see the collective prosecution of chemical weapons outside of its aegis as states taking steps to prosecute crimes where they are ‘willing and able’ to do so under the Rome Statute. In the words of former-Prosecutor Luis Moreno Ocampo the ICC “is designed to have almost no cases” and should rather help “countries to really take seriously their own obligations.

  • The call for a tribunal stems from a universal norm that is backed by treaties and strong resolutions in the UN Security Council and UN General Assembly as well as the OPCW. The tribunal would be established by a multilateral treaty signed by states from around the world. This geographic diversity would further strengthen the legitimacy of the tribunal.  These states would be coming together to collectively prosecute crimes that they could prosecute individually if they wanted to. They would be doing so by ‘delegating’ their existing right, under various treaties as well as universal jurisdiction, to prosecute CW crimes. They can do so regardless of their actual practice in prosecuting those crimes domestically because they delegate their sovereign right to prosecute those crimes, which exists and is the same across all states, rather than the manner in which they choose to do so domestically. 

  • A significant source of legitimacy for the tribunal is the fact that the victims, who suffered the horrific consequences of CW, are asking for accountability. This tribunal is not an example of victor’s justice or selective justice, but rather responds to the demand for justice from those most affected by the use of chemical weapons. Legitimacy further comes from the universality of the norm and the worldwide calls for holding perpetrators responsible as demonstrated by a multitude of UN Security Council and UN General Assembly resolutions. This universality will be further reflected in the geographic diversity of the states creating the tribunal.

  • The tribunal will be less expensive than other international courts and tribunals. Several steps have been taken to minimise the cost of the proposed tribunal, including:

    • Stages depending on need: The tribunal will reduce time and costs associated with its initial operation by taking shape through a phased approach, with key divisions being established first and others remaining on standby/operating with a skeleton staff until deemed necessary by investigative progress. It will also operate with flexible staffing to ensure that trials/prosecutions take place quickly and efficiently. 
    • Evidence mostly collected: Evidentially, the tribunal will closely cooperate with and build upon existing investigative efforts, particularly the OPCW and the IIIM (in the case of Syria), which vastly reduces the time and burden associated with initial investigative efforts and links the proposed tribunal to existing investigative/prosecutorial structures.
  • The tribunal can be set up with a group of 6-8 geographically diverse states who are serious about and aligned on CW and accountability. Once established, the tribunal can open its membership more broadly, on the understanding that equitable geographical representation is essential, to reflect the universality of the norm. Based off extensive research into the indictments of prior courts and tribunals and consultation with experts, once states agree to the creation of the tribunal, it is estimated it will take approximately one year to set up, and one year to issue the first indictment, given the amount of evidence already collected. 

  • Determining the success and legacy of international prosecutions does not lie solely on convictions. In fact, such prosecutions consist of a series of steps which each serve to reinforce the idea of accountability to perpetrators and reassure victims they have not been forgotten. The existence of a tribunal capable of holding perpetrators to account presents a very real threat to those alleged perpetrators, with arrest warrants serving to isolate indicted individuals and remove any remaining international legitimacy. Importantly, such a tribunal will show victims of CW that commitments to accountability are not merely words, but are indeed supported by actions. 

  • Through a Syrian stakeholder led process, which has been underway in consultation with experts and governments for more than two years, this solution has been proposed. Multiple expert and policy workshops were held, with growing interest from governments given that there is no other feasibly option to close the impunity gap.  The next step is for states to form an inter-governmental working group to discuss the outstanding issues and best approaches for establishing a tribunal.

  • Without a tribunal, the norm prohibiting the use of CW will continue to erode and become less absolute in future. Additionally, there will be no international outlet to use evidence collected by the OPCW and collated by the IIIM, preventing return on investment.  Importantly, it will show Syrian victims and survivors that commitments to accountability are merely words that are not supported by actions. We will have a world less secure. 

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Resources

UN resolutions affirming the prohibition against the use of chemical weapons and calling for accountability for individuals who violate this norm:

UNSC 2118 

UNSC 2209

UNSC 2235

UNSC 2314 

UNSC 2319

UNGA 68/182

UNGA 70/41

UNGA 71/69

UNGA 72/43

UNGA 73/45

UNGA 73/182 

UNGA 74/40 

UNGA 74/169

UNGA 75/55 

UNGA 75/193

UNGA 76/29 

UNGA 76/228 

 

International treaties prohibiting the use of chemical weapons directly and indirectly:

Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on Their Destruction (Chemical Weapons Convention)

Geneva Conventions of 1949 and Additional Protocols of 1977

1925 Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (1925 Geneva Protocol)

Hague Conventions of 1899 and 1907
 

Reports on chemical weapons use issued by international organizations:
 

First Report by the OPCW Investigation and Identification Team

Second Report by the OPCW Investigation and Identification Team

Third Report by the OPCW Investigation and Identification Team

 

First Report by the OPCW UN Joint Investigative Mechanism (February 2016)

Second Report by the OPCW UN Joint Investigative Mechanism (June 2016)

Third Report by the OPCW UN Joint Investigative Mechanism (August 2016)

Fourth Report by the OPCW UN Joint Investigative Mechanism (October 2016)

Fifth Report by the OPCW UN Joint Investigative Mechanism (February 2017)

Sixth Report by the OPCW UN Joint Investigative Mechanism (June 2017)

Seventh Report by the OPCW UN Joint Investigative Mechanism (October 2017)

Report of the Independent International Commission of Inquiry on the Syrian Arab Republic to the UN Human Rights Council (January 2021)