Abstract
In multiple international fora, the international community has unanimously condemned the use of chemical weapons by anyone in any circumstances as a violation of international law. However, the legal basis for these strong statements is not immediately apparent. This chapter undertakes a review of applicable international legal instruments and sources, including international humanitarian law, the Chemical Weapons Convention and resolutions of the United Nations Security Council and General Assembly, to examine the legal veracity of the statement. The review of these legal instruments and the practice of the international community would appear to lead to a conclusion that any use of chemical weapons by a non-State actor is prohibited as a matter of customary international law.
The views expressed are those of the authors alone and are not intended to reflect the views of the International Residual Mechanism for Criminal Tribunals or the United Nations in general.
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- 1.
OPCW 2015a, preambular para 1, operative paras 2–4. See also, infra, the same statement repeated by the OPCW Executive Council and expressed by the United Nations Security Council and General Assembly in practice referred to at Sections 3 and 4.
- 2.
While there is no commonly accepted definition of the term ‘non-State actor’, the definition articulated and used by the UN Security Council in UN Security Council Resolution 1540 (2004) as ‘individual or entity, not acting under the lawful authority of any State’ serves as a useful definition of ‘non-State actor’ for the purpose of this chapter.
- 3.
Article II(1) of the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, opened for signature 3 September 1992, 1974 UNTS 45, entered into force 29 April 1997 (CWC) provides that: ‘“Chemical Weapons” means the following, together or separately: (a) Toxic chemicals and their precursors, except where intended for purposes not prohibited under this Convention, as long as the types and quantities are consistent with such purposes; (b) Munitions and devices, specifically designed to cause death or other harm through the toxic properties of those toxic chemicals specified in subparagraph (a), which would be released as a result of the employment of such munitions and devices; (c) Any equipment specifically designed for use directly in connection with the employment of munitions and devices specified in subparagraph (b)’.
- 4.
The Geneva Protocol suffered from other limitations, such as preserving the right of Contracting Parties (States) to use chemical weapons in reprisal. For a discussion, see Asada 2015, pp 156–165.
- 5.
Article 3 common to the Geneva Conventions of 1949 prohibits each party to an armed conflict not of an international character (thereby including non-State parties to armed conflicts) from committing violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture.
- 6.
Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts, opened for signature 8 June 1977, 1125 UNTS 3, entered into force 7 December 1978 (Additional Protocol I), Article 35(2).
- 7.
Sandoz et al. 1987, para 1419. See also para 1420: ‘The weapons which are prohibited under the provisions of the Hague Law are, a fortiori, prohibited under the paragraph of Article 35 with which we are concerned here’.
- 8.
Additional Protocol I, above n. 6, Article 1(4) and Article 96(3). The General Court of the European Union recently gave legal standing to a non-State group that had made a declaration pursuant to Article 96(3) – the Front Polisario – in a case related to trade agreements with the European Union. See General Court of the European Union, Front populaire pour la libération de la Saguia-el-Hamra et du Rio de Oro (Front Polisario) v Council of the European Union, Judgment of the General Court (Eighth Chamber), 10 December 2015, Case T-512/12.
- 9.
A toxin may be characterized as a toxic chemical since the definition of toxic chemical is any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals. CWC, above n. 3, Article II(2).
- 10.
The Convention prohibits States Parties from developing, producing, stockpiling or otherwise acquiring or retaining: 1. Microbial or other biological agents or toxins, whatever their origin or method of production, of types and in quantities that have no justification for prophylactic, protective or other peaceful purposes; and 2. Weapons, equipment or means of delivery designed to use such agents or toxins for hostile purposes or in armed conflict. Convention on the Prohibition of the Development, Production and Stockpiling of Bacteriological (Biological) and Toxin Weapons and on Their Destruction, opened for signature 10 April 1972, 1015 UNTS 163, entered into force 26 March 1975 (BWC), Article I.
- 11.
BWC, above n. 10, Article IV.
- 12.
See ICTY, Prosecutor v Tadić Case, Jurisdiction, Appeals, 2 October 1995, Case No. IT-94-1 (Tadić), para 124 (noting that ‘there undisputedly emerged a general consensus in the international community on the principle that the use of [chemical] weapons is also prohibited in internal armed conflict’); Colombia, Constitutional Court, Constitutional Case, Judgment, 18 May 1995, Case No. C-255/95, para 23 (finding that although none of the treaty rules expressly applicable to internal armed conflicts prohibits indiscriminate attacks or the use of certain weapons, the Taormina Declaration (Declaration on the Rules of international humanitarian law governing the conduct of hostilities in non-international armed conflicts, San Remo, 7 April 1990) considers that the ban, established partly by customary law and partly by treaty law, on the use of chemical weapons apply to NIACs).
- 13.
ICRC n.d. Customary IHL Database, Rule 74.
- 14.
A draft that contained reference to bacteriological and chemical weapons was removed since it formed part of a broad general provision capable of covering nuclear weapons, which was rejected by nuclear possessor States, and the removal of chemical weapons was meant to appease the non-nuclear States. See UN Diplomatic Conference of Plenipotentiaries on the Establishment of an International Criminal Court 1998, paras 17, 18.
- 15.
The amendment has been part of the Statute since 26 September 2012. As per Article 8 of the Statute, it will come into force only for those States Parties which have ratified it, one year after doing so. At the time of writing, 34 States Parties had ratified the amendment.
- 16.
Some commentators have suggested that considering the use of chemical weapons to fall under the definition of ‘poison or poisoned weapons’ would leave nuclear weapons within this definition as well, which was not the intention of the drafters. Schabas 2013.
- 17.
While Article 8(2)(b)(xx) of the Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 3, entered into force 1 July 2002 (Rome Statute), provides the ICC with jurisdiction over the war crime of using ‘weapons, projectiles and material and methods of warfare which are of a nature to cause superfluous injury or unnecessary suffering or which are inherently indiscriminate in violation of the international law of armed conflict,’ this provision applies only in IACs and is enforceable once an annex listing such weapons is agreed upon by States Parties, and no agreement has yet been reached.
- 18.
CWC, above n. 3, Article I(1)(a) and (b).
- 19.
In this way, the CWC may be contrasted to treaties such as the Genocide Convention which explicitly states that ‘genocide, whether committed in time of peace or in time of war, is a crime under international law’. Convention on the Prevention and Punishment of the Crime of Genocide, opened for signature 9 December 1948, 78 UNTS 277, entered into force 12 January 1951 (Genocide Convention), Article I.
- 20.
See OPCW 2015e.
- 21.
CWC, above n. 3, Article I(1)(d).
- 22.
CWC, above n. 3, Article VI(2).
- 23.
CWC, above n. 3, Article X(8)(a). While Article X(8)(c) would seem to limit the right of States Parties to request assistance and protection from threats of use by States, the OPCW policy-making organs have suggested that threats of use of chemical weapons from non-State actors would also trigger this right. See OPCW 2017a, para 12.
- 24.
CWC, above n. 3, Article X(9) and (10).
- 25.
The Rapid Response Assistance Mission (RRAM), established in 2016, has the mandate to provide emergency measures of assistance to requesting States Parties that are victims of chemical weapons attacks by non-State actors. OPCW 2016c.
- 26.
CWC, above n. 3, Part XI, para 27 of the Verification Annex.
- 27.
ICTY, Prosecutor v Galić Case, Judgment, Appeals, 30 November 2006, Case No. IT-98-29-A, para 83. See also Ambos 2009, p 226 ‘… a treaty-based crime may become a true international crime by way of customary international law’.
- 28.
OPCW 2015d. There are only four non-party States: Egypt, Israel (a signatory), North Korea and South Sudan (which has indicated an intention to accede to the CWC).
- 29.
OPCW 2016d, paras 19–21.
- 30.
Transnational crime has been defined as ‘offences whose inception, prevention and/or direct or indirect effects involved more than one country’. Ninth UN Congress on the Prevention of Crime and the Treatment of Offenders 1995.
- 31.
- 32.
UN International Law Commission, Identification of customary international law 2016, Draft conclusion 4[5], para 2. See also UN International Law Commission 2015a, Draft conclusion 12 [13], para 2. See further, STL, In the Matter of El Sayed, Decision on Appeal of Pre-Trial Judge’s Order Regarding Jurisdiction and Standing, 10 November 2010, para 47 (finding that, among other things, the lack of objection by States to the practice of international criminal tribunals with respect to the exercise of their inherent powers or jurisdiction contributed to the formation of customary international law on the subject).
- 33.
OPCW 2013b (emphasis added).
- 34.
OPCW 2015c (emphasis added).
- 35.
The Executive Council is responsible for promoting the effective implementation of, and compliance with, the Convention. It comprises 43 States Parties on a rotational basis. CWC, above n. 3, Article VII, paras 30 and 31.
- 36.
- 37.
It is notable that in the operative paragraph of this decision, the Executive Council used the term ‘international law’ rather than the more ambiguous ‘legal norms and standards of the international community’. This could be taken to indicate a desire of the part of States Parties to underline the view that the use of chemical weapons by anyone is a violation of international law, not merely those legal standards shared among the international community.
- 38.
OPCW 2015b, preambular para 1, operative paras 2–4 (emphasis added).
- 39.
OPCW 2017a, preambular para 1, operative paras 3–5.
- 40.
OPCW 2016b, paras 3–4 (emphasis added).
- 41.
See e.g., OPCW 2016f: ‘The EU reiterates its strong belief that the use of chemical weapons by anyone, including non-State actors, anywhere and under any circumstances is abhorrent and must be rigorously condemned and that those responsible for such acts must be held accountable. The use of chemical weapons constitutes a violation of international law, a war crime, and a crime against humanity’. Similar statements were made by Finland, Germany, India, Ireland, Singapore, and Switzerland.
- 42.
OPCW 2016e (emphasis added).
- 43.
- 44.
For example, the jurisprudence of the International Criminal Tribunal for the former Yugoslavia has consistently held that for an offence to fall under the scope of Article 3 ICTY Statute (other serious violations of international humanitarian law), the violation, inter alia, must be serious, that is to say that it must constitute a breach of a rule protecting important values and the breach must involve grave consequences for the victim. Tadić, above n. 12, para 94. See also Rome Statute, above n. 17, preambular para 4 (affirming that ‘the most serious crimes of concern to the international community as a whole must not go unpunished”) and Article 1 (stating that the ICC shall have jurisdiction over “the most serious crimes of international concern’).
- 45.
See e.g. Federal Court of Australia, Nulyarimma and others v. Thompson, Full Court, 1 September 1999, 39 ILM 20 (2000) (ruling that in the absence of enabling domestic legislation, no person may be tried for genocide in Australia); En la cause Fulgence Niyonteze, Tribunal militaire de division 2, Lausanne, 30 April 1999; En la cause Fulgence Niyonteze, Tribunal militaire d’appel 1 A, Geneva, 26 May 2000; Prosecutor v. Dulgence Niyonteze, Tribunal militaire de cassation, Yverdon-les-Bains, 27 April 2001 (trying a Rwandan citizen for war crimes, rather than genocide, in Swiss courts based on applicable national law). See also R. v. Jones, [2006] UKHL 16 (holding that because aggression had not been criminalised pursuant to domestic legislation, individuals could not claim that they acted to prevent a crime (aggression) when they illegally entered military bases).
- 46.
As further examined below, the UN Security Council in 2015 established the JIM, which has the mandate to identify the ‘individuals, entities, groups, or governments who were perpetrators, organizers, sponsors or otherwise involved’ in those incidents in which the OPCW Fact-Finding Mission has determined that chemical weapons were used. UN Security Council 2015b, para 5. The mandate of the OPCW-UN Joint Investigative Mechanism was extended for a further year in UN Security Council 2016d.
- 47.
OPCW 2016 Director-General expresses concern over alleged recent chemical attacks in Iraq, opcw.org, 23 March 2016. https://www.opcw.org/news/article/director-general-expresses-concern-over-alleged-recent-chemical-attacks-in-iraq/. Accessed 21 May 2017.
- 48.
OPCW n.d.
- 49.
- 50.
OPCW 2017a.
- 51.
Ibid., paras 2–3.
- 52.
Ibid., paras 7–8.
- 53.
For a discussion on this initiative, see Meier and Trapp 2016.
- 54.
See UN International Law Commission 2015b, para 75.
- 55.
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, at 312 (Dissenting Opinion of Vice-President Schwebel, listing ‘action of the United Nations Security Council’ under ‘State practice’).
- 56.
- 57.
See e.g. UN Security Council 2013b, para 13, which underscored ‘that this resolution shall not be considered as establishing customary international law’.
- 58.
ICJ, Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, ICJ Reports 1996, at 226, 312 and 319 (Dissenting Opinion of Vice-President Schwebel). See Buergenthal and Murphy 2013, p 28.
- 59.
- 60.
UN Security Council 1988c, operative paras 2 and 4, respectively.
- 61.
UN Security Council Resolution 2001.
- 62.
UN Security Council Resolution 2004. The other weapons of mass destruction dealt with in the resolution are nuclear and biological weapons.
- 63.
Ibid., para 2.
- 64.
As noted earlier, the obligation in Article VII of the CWC is limited by its text to adopting the necessary measures to prohibit the use of chemical weapons.
- 65.
See Genocide Convention, above n. 19, Articles I, IV–V.
- 66.
Geneva Convention (I) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, opened for signature 12 August 1949, 75 UNTS 31, Article 49, entered into force 21 October 1950; Geneva Convention (II) for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, opened for signature 12 August 1949, 75 UNTS 85, Article 50, entered into force 21 October 1950; Geneva Convention (III) relative to the Treatment of Prisoners of War, opened for signature 12 August 1949, 75 UNTS 135, Article 129, entered into force 21 October 1950; Geneva Convention (IV) relative to the Protection of Civilian Persons in Time of War, opened for signature 12 August 1949, 75 UNTS 287, Article 146, entered into force 21 October 1950.
- 67.
See Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, 10 December 1984, 1465 UNTS 85, entered into force 26 June 1987, Articles 5 and 7.
- 68.
- 69.
The 1540 Committee, a Committee of the Security Council established by Security Council 1540, consisting of all members of the Council, with the assistance of other expertise as appropriate, reports to the Security Council on the implementation of Resolution 1540. UN Security Council 2004.
- 70.
UN Security Council 2016b, paras 58, 63–67.
- 71.
UN Security Council 2016e, preambular para 6 and operative para 15.
- 72.
UN Security Council 2013a, preambular para 8 and operative paras 1, 5 and 15 (notably, the language changes slightly to ‘should be held accountable’ in operative para 15); UN Security Council 2015a, preambular para 8. See also operative para 6 of UN Security Council 2015a in which the UN Security Council stressed again ‘that those individuals responsible for any use of chemicals as weapons, including chlorine or any other toxic chemical, must be held accountable’. In addition, see UN Security Council 2015b, operative para 4 (reiterating that ‘those individuals, entities, groups, or governments responsible for any use of chemicals as weapons, including chlorine or any other toxic chemical, must be held accountable’ and Security Council 2016c, preambular para 4 (‘reaffirming that the use of chemical weapons constitutes a serious violation of international law and reiterating that those individuals, entities, groups or Governments responsible for any use of chemical weapons must be held accountable’).
- 73.
UN Security Council 2013a.
- 74.
UN Security Council 2015a.
- 75.
UN Security Council 2015b, para 5.
- 76.
UN Security Council 2016d.
- 77.
UN Security Council 2016d, paras 4 and 9, respectively.
- 78.
UN Security Council 2016f, para 82.
- 79.
The JIM found that Syrian armed forces used chemical weapons on 21 April 2014 at Talmenes (chlorine), 16 March 2015 at Sarmin (chlorine) and 16 March 2015 at Qmenas (chlorine). UN Security Council 2016f paras 54 and 56; UN Security Council 2016a, para 19. On 26 October 2017, the JIM issued its report concluding that the Syrian Air Force was responsible for a sarin attack on the town of Khan Shaykhun attack in May 2017. UN Security Council 2017b, para 46.
- 80.
UN Security Council 2016f, para 58.
- 81.
UN Security Council 2017b, para 81.
- 82.
UN Security Council 2016a, para 52.
- 83.
UN Security Council 2017b, para 73.
- 84.
Campos R 2017 Russia vetoes UN resolution to find out who carried out chemical weapons attacks in Syria, Independent, 24 October 2017. http://www.independent.co.uk/news/world/europe/russia-syria-chemical-weapons-attack-sarin-un-resolution-china-moscow-assad-rebels-war-latest-a8017511.html. Accessed 21 May 2017; BBC News 2017 Syria: Russia blocks extension of chemical attacks probe, BBC News, 17 November 2017.
- 85.
UN Security Council 2017a.
- 86.
- 87.
UN General Assembly 2014, preambular para 8.
- 88.
UN General Assembly 2015, preambular para 6.
- 89.
UN General Assembly 2016a, operative para 1 (emphasis in original).
- 90.
UN General Assembly 2016c, operative para 4. See also operative para 3, and preambular paras 8 and 13.
- 91.
Ibid., operative para 5. See also operative paras 6–9.
- 92.
Ibid., preambular para 13.
- 93.
Ibid., operative para 30. See also operative para 42, encouraging the UN Security Council to take ‘appropriate action to ensure accountability, noting the important role that the International Criminal Court may play in this regard’.
- 94.
UN General Assembly 2016b, preambular para 5.
- 95.
Ibid., operative para 4.
- 96.
UN Secretary-General 2017, para 6.
- 97.
Ibid., para 12. See also Annex, Terms of Reference of the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011, para 5(a).
- 98.
International Convention for the Suppression of Terrorist Bombings, opened for signature 15 December 1997, 2149 UNTS 256, entered into force 23 May 2001. At the time of writing this chapter, there were 170 States Parties.
- 99.
Ibid., Articles 1(3)(b), 2, 3, 6(4).
- 100.
International Convention for the Suppression of the Financing of Terrorism, opened for signature 9 December 1999, 2178 UNTS 197, entered into force 10 April 2002. See Articles 2(a), 7(4).
- 101.
Protocol to the Convention for the Suppression of Unlawful Acts against the safety of Maritime Navigation, opened for signature 14 February 2006, 1678 UNTS 222, entered into force 28 July 2010, Articles 2bis(a), 2ter, 5(3).
- 102.
Convention on the Suppression of Unlawful Acts Relating to International Civil Aviation, opened for signature 10 September 2010, ICAO Doc. 9960, entered into force 1 July 2018. At the time of writing, there are 22 States Parties.
- 103.
For example, the Arab Convention on the Suppression of Terrorism, opened for signature 22 April 1998, entered into force 7 May 1999; the Organization of African Unity Convention on the Prevention and Combating of Terrorism, opened for signature 14 July 1999, entered into force 6 December 2002; the Council of Europe Convention on the Prevention of Terrorism, opened for signature 15 May 2005, CETS No. 196, entered into force 1 June 2007; and the SAARC Regional Convention on the Suppression of Terrorism, opened for signature 4 November 1987, entered into force 22 August 1988.
- 104.
Article 99 of the UN Charter provides: ‘The Secretary-General may bring to the attention of the Security Council any matter which in his opinion may threaten the maintenance of international peace and security’. UN Secretary-General Javier Pérez de Cuéllar indirectly justified his independent investigations of Iraqi chemical weapons use in the 1980–88 Iran-Iraq war by using his Article 99 authority. See UN Secretary-General 1986.
- 105.
In 1982, the UN General Assembly adopted a resolution that requested the UN Secretary-General ‘to investigate, with the assistance of qualified experts, information that may be brought to his attention by any Member State concerning activities that may constitute a violation of the [1925] Protocol or of the relevant rules of customary international law’. UN General Assembly 1982, section E, para 4. However, the resolution was not adopted unanimously, and the UN Secretary-General preferred to conduct such activities under his authority pursuant to Article 99 of the UN Charter.
- 106.
UN General Assembly 1987, para 4 (emphasis added).
- 107.
UN Security Council 1988c.
- 108.
Ibid., para 4 (emphasis added).
- 109.
UN Secretary-General 1991. The report concluded that from the material available it was not possible to determine whether or not a chemical weapon was used against the Mozambican government.
- 110.
UN Secretary-General 1992. The experts determined that no evidence of the use of chemical weapons had been presented to them.
- 111.
On 19 March 2013, the Syrian Government reported the alleged use of chemical weapons in the Khan Al-Asal area of the Aleppo Governorate. The following day, Syria asked the UN Secretary-General to launch an urgent investigation under the auspices of his Mechanism. The UN Secretary-General agreed to do so and contacted the OPCW and the World Health Organization (WHO) requesting their cooperation in mounting an investigation.
- 112.
The report concludes that chemical weapons (sarin) were used on relatively large scale, resulting in numerous casualties, particularly among civilians. UN Secretary-General 2013, para 27.
- 113.
Ibid., para 4 (emphasis added).
- 114.
Framework Agreement on the Elimination of Syrian Chemical Weapons, signed by the United States and the Russian Federation on 14 September 2013. The Agreement set out the plan for the removal and destruction of all categories of chemical weapons-related materials and equipment under OPCW’s supervision with the objective of completing such removal and destruction in the first half of 2014.
- 115.
UN Security Council 2016f, para 58.
- 116.
UN Security Council 2017b, para 81.
- 117.
- 118.
Rome Statute, above n. 17, Article 13(b). A draft resolution that would have had the UN Security Council refer the situation of Syria to the International Criminal Court proposed by France in 2014 was vetoed by two permanent members of the UN Security Council, the Russian Federation and China. UN Security Council Referral of Syria to International Criminal Court Fails as Negative Votes Prevent Security Council from Adopting Draft Resolution, United Nations Meetings Coverage and Press Releases SC/11407, 22 May 2014.
- 119.
The UN Security Council has established two ad hoc international criminal tribunals using its Chapter VII powers, the ICTY and the International Criminal Tribunal for Rwanda. The UN has also been instrumental in the establishment of hybrid courts such as the Extraordinary Chambers in the Courts of Cambodia, Special Court for Sierra Leone, Special Tribunal for Lebanon, Special Panels in East Timor, and the Supreme Iraqi Criminal Tribunal.
- 120.
Campos R 2017 Russia vetoes UN resolution to find out who carried out chemical weapons attacks in Syria, Independent, 24 October 2017. http://www.independent.co.uk/news/world/europe/russia-syria-chemical-weapons-attack-sarin-un-resolution-china-moscow-assad-rebels-war-latest-a8017511.html. Accessed 21 May 2017.
- 121.
Rule 36 of the OPCW Executive Council Rules of Procedure provides that ‘decisions of the Council on matters of substance shall be made by a two-thirds majority of all its members’. Rule 69 of the OPCW Conference of States Parties Rules of Procedures provides that where consensus is not attainable, ‘the Conference shall take the decision [on matters of substance] by a two-thirds majority of the Members present and voting unless specified otherwise in the Convention.'
- 122.
OPCW 2016b, para 10.
- 123.
CWC, above n. 3, Articles VIII(21)(k) and XII.
- 124.
Article VIII(f) of the CWC, above n. 3, provides that the Conference of States Parties may establish ‘such subsidiary organs as it finds necessary for the exercise of its functions in accordance with the Convention’. Other international organisations have established ad hoc international criminal courts. For example, the Extraordinary African Chambers were established under an agreement between the African Union and Senegal to try international crimes committed in Chad from 7 June 1982 to 1 December 1990.
- 125.
Rome Statute, above n. 17, Article 8(2)(e)(xiii)–(xiv). While this provision has been part of the Statute since 26 September 2012, it is only applicable for those States Parties which have ratified it, one year after doing so. It is unclear if State consent would also be required should the Security Council refer a situation. For a discussion, see Akande 2013.
- 126.
Persecution could be proved if the person or persons are targeted by chemical weapons by reason of the identity of a group or collectivity or targeted the group or collectivity as such. International Criminal Court, Elements of Crimes, Article 7(1)(h)(2).
- 127.
Ban Ki Moon, the former UN Secretary-General, has stated that the use of any chemical weapons in Syria would amount to a ‘crime against humanity’ and there would be ‘serious consequences’ for the perpetrators. UN News 2013 Use of chemical weapons in Syria would be ‘crime against humanity’ – Ban, UN News, 23 August 2013. http://www.un.org/apps/news/story.asp?NewsID=45684#.WHX2rlMrLcs. Accessed 21 December 2016. Similarly, US President Barack Obama stated that the use of chemical weapons would constitute a crime against humanity. The White House 2013 Remarks by the President in Address to the Nation on Syria, Office of the Press Secretary, 10 September 2013. https://www.whitehouse.gov/the-press-office/2013/09/10/remarks-president-address-nation-syria. Accessed 21 December 2016.
- 128.
See e.g. R v. Davison (Unreported, Newcastle Crown Court, Milford J, 14 May 2010) (where a defendant linked to a white supremacist group produced a quantity of ricin sufficient to kill nine persons in violation of s. 2(1)(b) of the Chemical Weapons Act 1996 (United Kingdom). He was also charged with preparation of a terrorist act); United States v. Levenderis, 806 F.3d 390 (2015) (where a defendant produced a quantity of ricin – although there was no link to a terrorist group, the Court found that the high lethality of the chemical weapon justified the prosecution under the Chemical Weapons Implementation Act 1998 (United States)); United States v. Fries, 781 F.3d 1137 (2015) (concerning the production and use of a chemical weapon in violation of the Chemical Weapons Implementation Act 1998 (United States) related to the home-made production and use of a chlorine chemical device which produced a cloud that required the evacuation of a neighbourhood); United States v. Ghane, 673 F.3d 771 (8th Cir. 2012) (where the defendant possessed enough potassium cyanide to kill 450 people); United States v. Crocker, 260 F. App’x 794 (6th Cir. 2008) (where the defendant attempted to acquire VX nerve gas and chlorine gas as part of a plot to attack a federal courthouse); United States v. Krar, 134 F. App’x 662 (5th Cir. 2005) (per curiam) (where the defendant possessed sodium cyanide); United Kingdom v. Ali (Unreported, Central Criminal Court (Old Bailey), Saunders J, 18 September 2015 (where the defendant attempted to acquire ricin on the dark web in contravention of the Chemical Weapons Act 1996 (United Kingdom)).
- 129.
See e.g. United States v. Levenderis, 806 F.3d 390 (2015) (noting that ricin is extremely deadly, that there is no known antidote for ricin poisoning, that it has the potential to pose a severe threat to public health and safety, that it is listed in Schedule 1 of the Annex on Chemicals in the Chemical Weapons Convention, and that the defendant’s intended use of ricin had the potential to cause mass harm).
- 130.
Bond v. United States, 572 U.S. (2014), at 2090 and 2093, respectively.
- 131.
For example, Shoko Asahara, founder and leader of the Aum Shinrikyo Japanese cult responsible for the 1995 sarin attacks in Tokyo, was charged with 27 counts of murder and other 16 other offences. At the time, Japan had not yet adopted domestic implementing legislation for the CWC.
- 132.
British Military Court, Case No. 9, The Zykon B Case, British Military Court, Hamburg, 8 March 1946, Law Reports of Trials of War Criminals, UN War Crimes Commission, Vol. I, 1947, at 93.
- 133.
Tucker 2006.
- 134.
Case No. 9, The Zyklon B Case, British Military Court, Hamburg, 8 March 1946, Law Reports of Trials of War Criminals, United Nations War Crimes Commission, Vol I, 1947, at 94.
- 135.
The acts were prosecuted as war crimes since genocide was not yet codified as an international crime at the time of these trials (the Genocide Convention was adopted in 1948). In addition, by reason of the application of the laws of war at the time by the military tribunals after World War II, the case focused on the murder of interned ‘allied’ civilians, rather than on the murder of the Jews, despite the fact that the Jews were the primary victims of Zyklon B.
- 136.
Ibid., Notes on the Case, at 103. British jurisdiction was mainly based on its assumption of ‘supreme authority with respect to Germany’ as one of the four Allied Powers occupying Germany after World War II which allowed it to prosecute German nationals for crimes wherever committed.
- 137.
Ibid., (The activities with which the accused in the present case were charged were commercial transactions conducted by civilians. The Military Court acted on the principle that any civilian who is an accessory to a violation of the laws and customs of war is himself liable as a war criminal).
- 138.
- 139.
Working R 2001 The trial of Unit 731, The Japan Times, 5 June 2001. http://www.japantimes.co.jp/opinion/2001/06/05/commentary/world-commentary/the-trial-of-unit-731/#.VurYY-IrIdU. Accessed 18 March 2016; Piccigallo 1979; Yamada 1950.
- 140.
Yamada 1950, p 490.
- 141.
Piccigallo 1979.
- 142.
Roling and Cassese 1992, p 18.
- 143.
District Court of Tokyo, Ryushi et al. v. The State, District Court of Tokyo, Shimoda Case, 7 December 1963, Judgement, para 11, reprinted in International Legal Reports 32–33, at 626–642.
- 144.
District Court of The Hague, Public Prosecutor v. Frans Cornelius van Anraat, 23 December 2005, Case No. 09/751003-04, http://www.haguejusticeportal.net/index.php?id=4497. Accessed 19 July 2016. (link no longer available)
- 145.
Court of Appeal of The Hague, Public Prosecutor v. Frans Cornelis van Anraat, 9 May 2007, Case No. 2200050906-2.
- 146.
Supreme Court of the Netherlands, Public Prosecutor v. Frans Cornelis van Anraat, 30 June 2009, Case No. 07/10742.
- 147.
ECtHR, Frans Cornelis van Anraat v. The Netherlands, 6 July 2010, Case No. 65389/09, para 96.
- 148.
Iraqi High Tribunal, Farhan Mutlak Al Jibouri, Sultan Hashim Ahmad Al Tae’e, Hussein Rashid Moharmned and Ali Hasan Al Majid v the General Prosecutor, Appeals Commission, 4 September 2007. http://www.worldcourts.com/ist/eng/decisions/2007.09.04_Prosecutor_v_al_Majid_et_al.pdf. Accessed 21 May 2017.
- 149.
Ibid. Evidence in the case included a number of audio tapes recording meetings of Al-Majid with senior Ba’ath Party officials in 1988 and 1989, in which Al-Majid stated: ‘I will kill them all with chemical weapons! Who is going to say anything? The international community? Fuck them! The international community and those who listen to them’.
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Naqvi, Y., Elias, O. (2020). Chemical Weapons and Non-State Actors. In: Heffes, E., Kotlik, M., Ventura, M. (eds) International Humanitarian Law and Non-State Actors. T.M.C. Asser Press, The Hague. https://doi.org/10.1007/978-94-6265-339-9_5
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