This article, by Eliza Walsh, Thomas Brown and Larry MacFaul, identifies priorities and actions addressing chemical weapons and Syria, from the perspective of implementing the Chemical Weapons Convention and reviewing national legislation both in Syria itself and other countries.
Introduction
The recent collapse of the Assad government in Syria has changed the future of the country’s political and security landscape. Central to this new reality will be how the new government addresses the issue of chemical weapons and their recent use. The political situation in the country presents potential opportunities, along with challenges, for verifiably eliminating Syria’s chemical weapons and chemical weapon production facilities and ensuring accountability for previous uses of chemical weapons. It also presents potential opportunities for Syria to put in place the laws and regulations required under the Chemical Weapons Convention (CWC). The impact on legislation from the recent developments in Syria also reaches beyond the country itself to other States Parties to the CWC. While this article focuses on the main legal issues currently facing Syria and other CWC States Parties, it appreciates that the most pressing issue for Syria and the international community is dealing with the weapons and facilities themselves.
Syria, chemical weapons and international law
When Syria acceded (that is, became a State Party) to the CWC in 2013, the Convention had almost universal membership with 189 states parties; Syria was one of only seven states not to have joined it. The CWC is the primary and most comprehensive international agreement on chemical weapons. Under the CWC, States Parties agree not to produce or use chemical weapons, and to destroy any existing stocks. They also agree that both of these undertakings will be verified internationally by the implementing body of the CWC called the Organisation for the Prohibition of Chemical Weapons (OPCW).
Syria acceded to the CWC following a chemical weapon attack on 21 August 2013 in the Ghouta district of Damascus. This attack provided the impetus for diplomatic efforts to eliminate the Syrian chemical weapons programme, leading to its accession to the CWC in the following month. Syria subsequently made an initial declaration to the OPCW which ought to have included all of its chemical weapons and facilities.
Urgency of securing and destroying chemical weapon stockpiles and production facilities
In the years since Syria’s accession, the OPCW has engaged in a process of trying to resolve gaps, inconsistencies, and discrepancies with Syria’s initial declaration, through the work of its Declaration Assessment Team (DAT). Since Syria’s accession to the Convention, 26 issues have been raised with Syria’s initial declaration which were identified as a result of the work of the DAT in their visits to Syria and consultations with the government. Out of these 26 issues, 19 remain unresolved as a result of the Assad regime’s “dismissive approach” and unwillingness to cooperate with the OPCW Technical Secretariat. As OPCW Director General Arias noted in his statement at the 66th Meeting of the Executive Council on 12 December 2024, “we all know that Syria did not declare its full chemical weapons programme”. Additionally, the OPCW has investigated the use of chemical weapons in Syria, through the work of its Fact Finding Mission (FFM) and Investigation and Identification Team (IIM). To date, the IIT of the OPCW and the United Nations Joint Investigative Mechanism have identified the Syrian Arab Republic’s armed forces as perpetrators of the use of chemical weapons in nine instances and the Islamic State in Iraq and the Levant as perpetrators in three cases.
The obligation to submit timely, accurate and complete declarations related to chemical weapons and chemical weapons facilities on its territory remains binding upon Syria, regardless of any change in Government, as provided under international law as well as decisions of the United Nations Security Council and the OPCW Executive Council. Full cooperation by a new Syrian Government with the OPCW Technical Secretariat on declarations of chemical weapons and chemical weapons production facilities in Syria could move the country forward towards compliance. Additionally, the end of the Assad government creates a possible opportunity to resolve Syria’s non-compliance with its obligations under the CWC and hold those individuals responsible for the use of chemical weapons accountable.
Syria’s CWC implementing legislation
As a State Party to the CWC, Syria is obliged to develop laws and policies to implement the Convention at the national level. The type of measures which all CWC States Parties are required to adopt include definitions (for example, the definition of chemical weapons), prohibitions relating to chemical weapons, prohibitions relating to scheduled chemicals, jurisdictional requirements, control measures, chemical safety and security measures and legislative enforcement measures. States must then inform the OPCW of the measures they have taken.
Publicly available reporting indicates that Syria has little relevant legislation in place. A detailed legislative analysis, such as those routinely carried out by VERTIC could further illuminate the status of legislative implementation in the country. Based on many years of experience working in this area, VERTIC has noted that national implementation is not typically acted on immediately by a State after it ratifies or accedes to the Convention. However, if the new Syrian government is keen to show its support and commitment to the prevention of chemical weapons, national legislative implementation of the CWC might be included among the (many) near-term priorities for the country. Such a move might provide a useful positive signal given the country’s history regarding recent use of chemical weapons, and outstanding questions on chemical weapon stockpiles and production facilities. Assistance for the identification and drafting of legislation to implement the CWC is available to any State Party through organisations such as the OPCW and VERTIC subject to certain political, diplomatic and security conditions being in place.
Legislative implications for other CWC States Parties
From a legislative point of view, the greatest impact in the short-term is likely to fall upon other CWC States Parties, in particular in relation to legislation implementing sanctions and the denial of the export of dual-use chemicals to the country. For example, for over a decade the European Union (EU) has implemented a stringent policy in relation to export controls for Syria due to fears that transfers of dual use chemicals could contribute to chemical weapons programmes in the country. Such policy is reflected in national legislation of EU member states controlling the export of dual-use materials and includes a prohibition of the transfer of certain chemicals to end users in Syria. If the new Syrian government illustrates a genuine interest and capability to comply with the provisions of the CWC, and adopts effective legislation to achieve this, this may have an effect on the EU’s policies and regulations. EU member states would then need to amend their national measures including relevant laws, regulations and policies accordingly. Similarly, other CWC States Parties with legislative sanctions concerning the supply of dual-use chemicals to Syria may choose to evaluate such control measures in light of the change of government in the State, although restrictions on the trade in scheduled chemicals will still apply.
CSP decisions on Syria’s status with the OPCW and on transfer of chemicals
A number of decisions over the past number of years have been taken by the Conference of the States Parties (CSP) to the CWC to address the repeated non-compliance with the Convention under the Assad regime. These decisions included the revocation of voting rights and other rights and privileges at the Organisation as well as a decision at the 28th session of the CSP which imposed collective measures upon Syria and recommended to States Parties “to prevent the direct or indirect supply, sale, or transfer to the Syrian Arab Republic, through their territories or by their nationals, or using their flag vessels or aircraft, and whether or not originating in their territories, of the chemical precursors and dual-use chemical manufacturing facilities and equipment and related technology”. In light of the change in government in Syria, and dependent on how the issue of chemical weapons is addressed by the new authorities, States Parties may need to reconsider these decisions and any national policies or legislation in place to comply with these decisions. The could also consider any potential incentives such changes may provide to the new Syrian government, since these privileges could be reinstated upon cooperation with verification efforts and demonstrated compliance with the CWC.
Accountability efforts
Another important legal aspect to consider will be activities related to the preservation of evidence from instances of the use of chemical weapons for potential future accountability efforts. A large volume of evidence and reporting has been gathered by bodies such as the OPCW’s FFM and IIT as well as the United Nations International, Impartial and Independent Mechanism (IIIM) relating to previous chemical weapons attacks in Syria which may be used in future accountability efforts. It is possible that with the fall of the Assad leadership, further evidence which was previously being guarded by the authorities may now become available.
A number of ‘universal jurisdiction’ cases concerning the use of chemical weapons in Syria are already underway in Germany, France, Sweden and elsewhere, including an arrest warrant issued by a French court for Bashar al-Assad and three others for a chemical weapon attack in Syria in 2013. The principle of ‘universal jurisdiction’ enables a state to have jurisdiction over crimes against international law for which there is no territorial or nationality link to the state. For such cases, the crime has not been committed on the territory of the prosecuting state and neither the perpetrator nor victim are nationals of that state.
Additionally, the new Syrian government may choose to set up national mechanisms to hold both non-state actors and former state actors to account for their involvement in chemical weapon attacks, whether that be through a specific tribunal for chemical weapons related crimes or crimes committed by the regime more broadly, or through the national court system.
Conclusion
There is a large degree of uncertainty following the end of the Assad leadership in terms of the formation of the next Syrian government. As such, the ways in which the country deals with any chemical weapons stockpiles, facilities, as well as the history of chemical weapons use, remains to be seen. However, there is a clear opportunity for Syria to facilitate the complete verified destruction of any chemical weapons and chemical weapons production facilities and to enact the required national legislation. Ultimately, Syria may join the routine non-proliferation-related activities that other States Parties to this important treaty engage in, such as receiving international inspections of their domestic chemical industry and enjoy the benefits of the peaceful uses of chemistry without contributing to the proliferation of chemical weapons.
