Why is there impunity for the use of chemical weapons?
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.
Why don’t existing courts meet this need?
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.
How would the proposed tribunal relate to the International Criminal Court?
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.
Where would the tribunal get its power to try individuals?
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.
Where would the tribunal get its legitimacy?
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.
Aren’t international tribunals expensive to set up and operate?
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:
o 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.
o 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.
How would the tribunal be set up?
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.
What if the tribunal is not able to obtain custody of or try alleged perpetrators?
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.
What has happened so far and what is the next step?
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.
What will happen if there is no 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.