It has been just over one year since I wrote a piece for the Huffington Post about the absence of an international mechanism by which users and suppliers of chemical weapons could be held accountable both morally (through criminal prosecution) and financially (through payment of compensation to victims) in view of the largest chemical weapons attack on a civilian population in history at Halabja, Iraq, in 1988, more recent chemical weapons attacks in Syria in 2013 and 2015, and further such attacks by ISIS.
Interestingly, this month, the UN Security Council adopted Resolution 2235 creating an Office for the Prohibition of Chemical Weapons (OPCW)-United Nations Joint Investigative Mechanism (JIM). The aim of the JIM is
"to identify to the greatest extent feasible individuals, entities, groups or governments who were perpetrators, organisers, sponsors or otherwise involved in the use of chemicals as weapons, including chlorine or any other toxic chemical, in the Syrian Arab Republic..."The Security Council has called upon the UN Secretary-General to submit Terms of Reference by today.
Resolution 2235 was drafted by the US and passed unanimously by the 15-member Security Council, including permanent members China, Russia, France, the UK and the US. Following an earlier Security Council meeting where videos of Syrian children who died as a result of inhalation of chemical weapons were shown and at which there was said not have been a dry eye in the house, US Ambassador to the UN, Samantha Power, was reported to have said that evidence of chemical weapons attacks in Syria 'will be used at some point in a court of law.'
For the moment, the only court of law which would be capable of prosecuting those involved in the chemical weapons attacks in Syria would be the International Criminal Court (ICC). Yet, as Syria is not a State Party to the Rome Statute which created the Court, the only way the Prosecutor could initiate an investigation which may lead to a prosecution would be if the situation in Syria were referred to her by the Security Council. In 2014, permanent members China and Russia vetoed a proposed referral of the Syrian civil war.
Nonetheless, it will be interesting to see just how the JIM interprets and fulfils its mandate to identify "to the greatest extent feasible" even those who were not direct perpetrators but merely "sponsors" or people who were "otherwise involved" in the chemical weapons attacks.
One suspects that the US has understood its own drafting of Resolution 2235 as mandating the JIM to determine whether it was the Assad government or its militant detractors who deployed chemical weapons in Syria on each identified occasion since 2013. The question, however, is whether the JIM will be sufficiently courageous also to investigate the matter of who supplied either or both parties with the chemical weapons or the precursors from which it/they made the chemical weapons which were subsequently used and, in the event that the suppliers had knowledge of the likely use to which the chemicals would be put, to hold them to account as well.
Recent history is littered with examples of Western governments, companies and individuals supplying chemical weapons and not being held to account. While the Syrian users of chemical weapons should be held to account, surely those who knowingly provided them with the means to cause such horrific human suffering must also be held to account, lest the JIM be yet another example of partial international justice.
In May 2011, victims of the chemical weapons attacks at Halabja brought an action in the US District Court for the District of Maryland against Alcolac which, in the 1980s, was a subsidiary of British company, Rio Tinto Zinc. They relied on the fact of Alcolac having sold, in 1987, over 120 tonnes of thiodiglycol (TDG) to intermediary companies which on-sold it to the government of Saddam Hussein when Alcolac knew that TDG could be used to manufacture mustard gas and for that reason had been the subject of export controls. The TDG in fact reached Iraq. Yet the only consequence visited upon Alcolac was a fine for violating the US Export Administration Act.
Also in the 1980s, prior to the 1988 attacks on Halabja, the British government granted export credit guarantee cover to Uhde Ltd of Hounslow, the wholly owned subsidiary of German company, Uhde GmbH, for the construction of chlorine plant, Falluja II, the purpose of which the UN has described as "to produce raw materials and precursors for the manufacture of chemical weapons agents." The deal would not have been able to go ahead were it not for the grant of cover.
At around the same time, the government also failed to prevent British companies from supplying dual use chemicals and plant to Iraq though it was aware of the likely use to which they would be put and of its power to prevent the transactions. No one has been held to account for this, despite Britain having previously ratified the 1972 Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on their Destruction. By Article IX of that Convention, Britain had undertaken to continue negotiations in good faith with a view to reaching early agreement on effective measures for the prohibition of the development, production and stockpiling of chemical weapons.
More recently, and in relation to Syria, it was discovered that between 2004 and 2010, Britain had issued five licences for the export of sodium fluoride which can be used to make sarin, the most potent of nerve agents, used in the chemical weapons attacks in Syria in 2013. Further such licences were granted in 2012. The grants were investigated by the House of Commons Committees on Arms Export Controls (CAEC), the Chair of which, Sir John Stanley, posed written questions directly to then Business Secretary, Vince Cable. Cable's response to Sir John's request for the provision of the names of the companies to which export licences were granted was said to have denied the Committees the ability to take evidence from those companies in order properly to scrutinise the actions of his department (BIS) in granting the licences. In its Scrutiny of Arms Export Controls (2014), the CAEC concluded that the government's decision to grant the 2012 licences, after civil war had broken out in Syria, was irresponsible and the government's view that there were no grounds for refusing the export licences was grossly inaccurate and the result of a serious failure of due process within BIS. This hardly amounted to the government being held to account.
Only one individual, Dutch businessman, Frans van Anraat has ever been successfully prosecuted for the supply of chemical weapons, in that case to the Iraqi government in the lead-up to the attacks at Halabja. On 7 April 2015, the Appeals Court of The Hague confirmed an order that he pay compensation to each of the 16 Iranian victim-claimants in the sum of 25,000 euros. But of course, the supply of chemical weapons used at Halabja and elsewhere by the Iraqi government was far from the work of van Anraat alone.
As we await the JIM's Terms of Reference, we can only hope that the images of Syrian children suffocating to death after having inhaled mustard gas that appear to have motivated the Security Council to create the JIM will be sufficient to motivate JIM staff to pursue a full investigation, including into any complicity by permanent members of the Security Council. Whether they will also compel the Security Council to refer all of those involved, including governments of its member States, to the ICC for prosecution remains to be seen.