Syria’s Chemical Weapons and the World’s “Red Line”

[UN Photo/Mark Garten]

By Aryeh Neier

A little discussed but important element of the Security Council resolution on Syria’s chemical weapons is a provision for “accountability” for those responsible for the August 21 poison gas attack that killed more than a thousand non-combatants. Previously, Russia Foreign Minister Sergei Lavrov had called for a separate investigation of responsibility for the attack. Though the Russians have also purported to believe it was actually the work of Syrian rebels, they have cited no evidence for this claim other than their speculation that the rebels did it to bring about military intervention by the west. Even so, the call for accountability in the Security Council resolution and the Russian support for a separate investigation provide an opportunity that should not be missed.

The way to go forward would be to empower a judicial body to hold accountable those who launched the attack and to conduct its own independent investigation to determine their identities. In one respect, the outcome of such an investigation seems a foregone conclusion. The U.N. chemical weapons inspectors determined that a large quantity of a poison gas was used that is known to be part of the Syrian government’s arsenal; that the missiles used to deliver the poison gas were weapons unlike those that have been used by the rebels; and, most damning, that the trajectory of those missiles makes it clear that they were fired from a secure Syrian government military base that plays a central role in President Bashar al-Assad’s effort to crush the rebellion.

Because their mandate was limited to determining how the deaths came about, the U.N. chemical weapons investigators did not themselves set forth these conclusions that may be readily drawn from their findings. A new investigation by a judicial body would also address the question of who authorized the attack. Even if it shows, as expected, that it was the Syrian government, was it Assad himself? Or was the attack ordered by military commanders operating independently?

Three possible avenues for accountability have been proposed. The matter could be referred to the International Criminal Court by the U.N. Security Council. Because Syria is not a party to the treaty establishing the court, a referral by the Security Council is required. An alternative would be a Security Council resolution to establish an ad hoc tribunal for Syria, as it did for the former Yugoslavia and for Rwanda. These two alternatives could only succeed if Russia refrains from using its veto power in the Security Council. A third alternative that would not involve the Russians would be establishment of an ad hoc tribunal by a regional body, in this case the Arab League. Each has different advantages. These are less important than affirmation of the principle that so heinous a crime must be punished. It is not that this was a worse crime than all the others that have been committed in Syria. What is crucial is demonstrating that the absolute prohibition on such an attack in international law which has not been violated in the past quarter of a century, should be enforced. It is an essential way to show that there are limits on the cruelties the world will tolerate.

It is tempting to be cynical about Russian President Vladimir Putin’s claim to seek compliance with international law. In this case, however, it seems wiser to take him at his word and to get him to make good on that claim. Taking up his foreign minister’s call for an investigation of responsibility for the poison gas attack and the call for accountability in the Security Council resolution is the way to do this.

Aryeh Neier is the president emeritus of Open Society Foundations