Chemical Weapons Used in Syria — By the Rebels…

by Kevin Jon Heller

This according to the Commission of Inquiry on Syria, which has considerable investigative ability. Reuters:

(Reuters) – U.N. human rights investigators have gathered testimony from casualties of Syria’s civil war and medical staff indicating that rebel forces have used the nerve agent sarin, one of the lead investigators said on Sunday.

The United Nations independent commission of inquiry on Syria has not yet seen evidence of government forces having used chemical weapons, which are banned under international law, said commission member Carla Del Ponte.

“Our investigators have been in neighboring countries interviewing victims, doctors and field hospitals and, according to their report of last week which I have seen, there are strong, concrete suspicions but not yet incontrovertible proof of the use of sarin gas, from the way the victims were treated,” Del Ponte said in an interview with Swiss-Italian television.

“This was use on the part of the opposition, the rebels, not by the government authorities,” she added, speaking in Italian.

Recent news reports indicate that the Obama administration has been rethinking its opposition to arming the Syrian rebels. The Commission’s revelations, if true, not only complicate that idea but also deprive those who (in my view misguidedly) want to invoke the responsibility to protect to justify military intervention in Syria of one of their most potent rhetorical weapons. It’s easy to justify intervening in a civil war when one side is “good” and the other is “bad.” The situation is much more complicated, however, when a civil war involves two bad sides, even if one side — here, clearly the Syrian government — is worse than the other.

PS. As Ty McCormick points out at FP.com, the Commission’s findings would seem to validate Obama’s unwillingness to conclude — as demanded by the British, French, and Israelis — that the Syrian government has been responsible for using chemical weapons.

http://opiniojuris.org/2013/05/06/chemical-weapons-used-in-syria-by-the-rebels/

9 Responses

  1. Regardless of the question of who used the chemical weapons, isn’t the fact that they WERE used a sufficient basis for intervention? Hasn’t a red line been crossed simply by the usage of WMDs against civilian population?
    I’m not looking for the typical Article 51 answer – I’m asking, from the perspective of what the law ought to be, not what it is. Shouldn’t the law provide countries (primarily neighbouring countries with most to lose, like Israel or Jordan and Turkey – and if they so desire, seek the help of global powers like the USA) the ability to take preemptive action when such weapons are gradually falling into potentially dangerous and destructive hands (terror groups, Al-qaeda, Hizbollah). I’m not trying to promote the Bush doctrine all over again, but as the UNSG prepares for yet another report on R2P (this time with emphasis on prevention mechanisms) shouldn’t we debate whether the current state of the law is sufficient to address highly foreseeable mass atrocities.

  2. Asaf, I like your very pertinent question:
    “Shouldn’t the law provide countries (primarily neighbouring countries with most to lose, like Israel or Jordan and Turkey – and if they so desire, seek the help of global powers like the USA) the ability to take preemptive action when such weapons are gradually falling into potentially dangerous and destructive hands”
    One clarification though: Would this proposed law also then provide Egypt, Syria and Jordan with the right to pre-emptively take out Israel’s WMD: nuclear weapons but other types of arsenal too?

  3. The problem with this is that any notion of sarin being used by the rebels has an innate air of improbability about it. If the rebels have sarin then it is hard to believe it could have fallen into their hands without the shells, rockets etc being distributed on a large scale to Assad’s frontline forces – which could only have occurred on the orders of the country’s highest leaders and for one reason and one reason only.

  4. Mr Clarke:
    Sarin gas was released by a religious cult in the Japanese subway system in the mid 90s. It didn’t likely fall into their hands from shells, rockets, ect distributed an masse to Japanese miliitary and/or police forces at the time. This technology is pretty old and dates back to the 30s. It’s a pretty slippery (and frankly bone-chilling) slope in my estimation to conclude the the use of such weapons by third parties is ipso facto justification for outside military intervention. 
    Any smart military tactician would know the most likely answer to who would use such weapons lies in the question “cui bono?” The answer was always ‘Not the Syrian government’. I cannot think of one regime that has unleashed chemical weapons at their disposal when faced with impending overthrow.  Csarist Russia was the first to face this dilemma, and it didn’t. Germany gassed its Jews but never used chemical weapons on the battlefield during its death throes. Japan gassed the Chinese but never the invading American forces. Chemical weapons are generally used as a side arsenal when it can employ them with relative confidence, not last resort weapon. The same could be said regarding Saddam’s gassing of the Kurds…he never employed chemical weapons against US forces during the first Gulf war. It was always more likely a rebel assault, designed to spark mass outrage against Assad and political pressure on the rest of the world.

  5. For readers of prior posts on WMD in Syria, again, I have an article that is stuck at the printers in the Pen.. J. Int’l L.  It addresses possible claims to destroy chemical and biological weapons in Syria under U.N. Charter, arts. 51 and 52 (the latter re: NATO authorized “regional action”).  Israel has a claim of self-defense under art. 51 and need not claim “preemptive” self-defefnse (which is not lawful) — self-defense because, as media now report, such weapons might be being transfered to Hezbollah, which has engaged in continual armed attacks against Israel over the years.  The destruction of such weaponry was predicted many months ago as well as the fact that if they fell into the hands of nefarious groups within the Free Syrian Army, they should be destroyed so that such a grouop does not use them against Israel or transfer them to Hezbollah.  Yes, there are complexities involved regarding members of the Syrian opposition.
    When the article is actually printed, I will post it on SSRN and provide a click-on here as well.

  6. Liz, I take it you are trying to convince me that sarin has been synthesised and weaponised by Syrian rebels? Although not impossible, that also has, as I say, an air of improbability about it – much more so than even the unlikely notion that sarin has fallen into the hands of Syrian rebels via the government.
    There is a big difference between making the toxin in impure form and releasing it in a confined space, and weaponising sarin in the form of a bomb, shell or rocket for battlefield use. If any group of nutters could do the latter, then sarin gas attacks would hardly be a novelty.
    As for the ‘cui bono’ argument, I don’t really see where that goes. It is pretty obvious to everyone that despite all the talk of ‘red lines’, no intervention is imminent. In the circumstances, there is no reason to believe that Assad can’t deploy his chemical weapons ‘with relative confidence’. He has been dropping all manner of bombs on people for two years – what is there to dissuade him from dropping sarin bombs on them? If you are asking what the benefit is, I don’t see why anything other than killing the perceived enemy on the battlefield is necessary as an explanation – it’s the same calculus that has guided the use of every other type of munition dropped in Syria.
    Lo and behold I check the news today and Del Ponte’s comments are being disowned by the Commission she purports to speak for.

  7. As far as I am able to ascertain, Del Ponte’s ‘strong, concrete suspicion’ arise from interviews with survivors in hospitals. So, she is interviewing the victims of purported attacks. Not rebels who used the weapons, not people from within their command structure.
    How that provides a basis for attributing responsibility for the attack, one can only guess. Presumably Del Ponte has some notion of where the victims were, whether it was under government control and whether it was generally perceived as loyalist.
    But I don’t need to tell people on an international law forum that these weapons are illegal partly because they are indiscriminate, and unless the attack is sustained, the location says little if anything about the identity of the perpetrator.
     

  8. Mr Clarke,
    If we’re going with the assumption that Assad can feel free to deploy his chemical weapons ‘with relative confidence’ and little to  dissuade him, it would seem a very tiny attack on which to wage such a gamble, having so much at his disposal. 

  9. It’s not inconsistent with the way that the new deployment of weapons has become apparent to those outside the country. In the past, such developments have revealed themselves gradually – see e.g. http://brown-moses.blogspot.com.au/. Whether that is because weapons are deployed piecemeal when it is tactically convenient, or because the conflict is simply opaque, is hard to say.

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