Syria revisited - international law and the use of biological weapons

Posted by Scott Spence (scott.spence) on Oct 05 2012
VERTIC Blog >> National Implementation Measures
Scott Spence, Geneva
On 8 August, I blogged on the topic of Syria’s declared chemical weapons stockpiles and the questions they raise under international law. I’d now like to turn to their biological weapons stockpiles and the related but different questions under international law.
As Syria continues to boil over with internal armed conflict, the international community has continued to apply pressure on the Government to refrain from using chemical weapons against rebel forces and civilians. As I noted in my earlier blog post, the alarm bells about suspected chemical and biological weapons programmes started ringing more loudly when Foreign Ministry spokesman Jihad Makdissi officially acknowledged their existence by announcing to the international community, on 23 July, that these weapons would not be used against civilians, but would be used in the event of ‘external aggression’.
More recently, UN Secretary-General Ban Ki-moon, speaking at the High-Level Meeting of the Organization for the Prohibition of Chemical Weapons on 1 October, reiterated that he had “… expressed grave concerns with statements made by representatives of the Syrian Government regarding the existence of chemical weapons and their possible use. I have also personally conveyed these concerns directly to President Assad in writing many weeks ago”. The Secretary-General also emphasized “…the fundamental responsibility of the Syrian Government to ensure the safety and security of any such stockpiles” and warned the Government that “[t]he use of such weapons would be an outrageous crime with dire consequences”. Indeed, and this is precisely the point that I made in my earlier blog: any use of chemical weapons would be a violation of the 1925 Geneva Protocol for the Prohibition of the Use of Asphyxiating, Poisonous or other Gases, and of Bacteriological Methods of Warfare (1925 Geneva Protocol), to which Syria is a State Party; a violation of customary international law; and a war crime under the Rome Statute, which could be referred to the International Criminal Court by the UN Security Council. What still appears to be getting less attention, however, is the other part of the statement by the Foreign Ministry, namely, that Syria also possesses biological weapons which they would use in the event of ‘external aggression’.
The use of biological weapons is very clearly prohibited in international law under a number of different legal instruments, including the 1925 Geneva Protocol and the 1972 Biological and Toxin Weapons Convention (BWC). In 1968, Syria acceded to the 1925 Geneva Protocol, which unequivocally prohibits the use in war of asphyxiating, poisonous or other gases, and of bacteriological methods of warfare. Moreover, though Syria is not a State Party to the BWC, it signed it in 1972 and therefore has certain obligations under the 1969 Vienna Convention on the Law of Treaties, in particular under Article 18(a):
“A State is obliged to refrain from acts which would defeat the object and purpose of a treaty when:
(a) it has signed the treaty or has exchanged instruments constituting the treaty subject to ratification, acceptance or approval, until it shall have made its intention clear not to become a party to the treaty…”
On the basis of Syria’s international legal position, the Government may have thought twice about using biological (or chemical) weapons against its own citizens even though the 1925 Geneva Protocol and BWC were originally concerned with their use in international conflicts. And as with chemical weapons, the ICRC concluded in 2005 that customary international humanitarian law includes a ban on the use of biological weapons in internal as well as in international conflicts.
It also seems clear to me that Syria has no international legal basis for any use of biological weapons against ‘external aggression’. Again, as a State Party to the 1925 Geneva Protocol and signatory to the BWC, Syria is bound to refrain from any use of biological weapons in international armed conflict. Their use in the event of ‘external aggression’ would therefore be a violation of both treaties and a violation of customary international humanitarian law. Such use could also trigger an investigation under the UN Secretary-General’s Mechanism for Investigation of Alleged Use of Chemical and Biological Weapons. However, since there is no organisation comparable to the Organisation for the Prohibition of Chemical Weapons for biological weapons with which he could co-operate, the Secretary-General would be limited to launching an investigation and sending a fact-finding team to the site of the alleged incident.
I am more concerned, however, about the applicability of the Rome Statute in the event Syria did launch a biological weapons attack internally or in the event of ‘external aggression’. It’s one thing for ‘the State’ to have violated treaties or international customary law, it’s quite another for individuals – including the highest officials – to be prosecuted in The Hague for war crimes involving these weapons. As I pointed out in my earlier blog post, the UN Security Council can refer Syria – a non-State Party to the Rome Statute – to the International Criminal Court (ICC) for chemical weapons use because ‘employing asphyxiating, poisonous or other gases, and all analogous liquids, materials or devices’ – language which is drawn from the 1925 Geneva Protocol – is a war crime under Article 8(2)(b)(xviii). Yet one of the purposes of the 1925 Geneva Protocol – to extend these prohibitions to ‘the use of bacteriological methods of warfare’ – was not included in the Rome Statute for reasons which are explained at length in VERTIC Brief No. 14 ‘Chemical and biological weapons use in the Rome Statute: a case for change’. Regretfully, the consequence of this is that the ICC would face a very difficult hurdle in establishing jurisdiction over war crimes committed by individuals using biological weapons in Syria. Hopefully we will not have to test this proposition.

Scott Spence is VERTIC’s Senior Legal Officer. He is responsible for the strategic vision and technical delivery of the National Implementation Measures Programme.

Last changed: Oct 11 2012 at 9:03 PM