AURIANE BOTTE

On 7 August 2015, the United Nations (UN) Security Council unanimously adopted Resolution 2235 that creates a Joint Investigative Mechanism, associating the UN with the Organisation for the Prohibition of Chemical Weapons (OPCW), to investigate the use of chemical weapons in Syria and identify the individuals or entities responsible for this violation of International Law. This raises one question: could Resolution 2235 lead the way towards a consensus at the Security Council on accountability for the widespread violations of Human Rights or International Humanitarian Law?

The Joint Investigative Mechanism

As is well known, the Security Council has had difficulties in adopting a common position with regard to the situation in Syria since Russia and China used their veto power four times since the beginning of the conflict. As such, Resolution 2235 could therefore be seen as a positive sign that the Security Council managed to agree on at least one specific point of accountability with regard to the Syrian conflict.

Evidence on the use of chemical weapons was, so far, collected by the OPCW Fact-Finding Mission created in 2014. However, the OPCW Fact-Finding Mission is limited to reporting occurrences of the use of chemical weapons without being empowered to attribute responsibility to one or more parties to the conflict. The Joint Investigative Mechanism therefore adds another piece to the jigsaw puzzle by identifying those responsible for the use of chemical weapons. It is interesting to note that Resolution 2235 adopts a broad approach to refer to “those responsible”, including individuals, entities, groups or governments as well as to define the extent of the degree of responsibility with an open-ended list of possible involvements.

Moreover, it is specified in Resolution 2235 that all States, in addition to the Syrian Arab Republic and all parties to the conflict in Syria, should cooperate with the Joint Investigative Mechanism, as was already requested in Resolution 2118. The Joint Investigative Mechanism will also be able to work in coordination with the OPCW Fact-Finding Mission and to access information and evidence collected by it. Finally, the Security Council reaffirms in Resolution 2235 that any violation of Resolution 2118 could trigger coercive measures taken under Chapter VII of the UN Charter.

From accountability for the use of chemical weapons to accountability for crimes against humanity and war crimes?

Resolution 2235 appears to be a first step towards accountability for the use of chemical weapons in Syria. The objective of ending impunity for violations of International Law is clearly underlying the statements made by the States at the Security Council. The question remains whether the consensus on accountability for the use of chemical weapons could lead to a consensus on accountability for the commission of crimes against humanity and war crimes. One could establish a parallel on the reasons underlying the unanimous vote on the prohibition of the use of chemical weapons and the criminalisation of crimes against humanity and war crimes. The use of chemical weapons is not explicitly defined as an international crime in any international instrument. Nevertheless, some specific acts falling under the scope of crimes against humanity or war crimes, such as employing asphyxiating gas, are closely linked with the use of chemical weapons. Both seem to be based on the strong moral condemnation attached to the use of chemical weapons and the commission of crimes against humanity and war crimes. The Security Council, for example, refers to the “outrage of the international community”.

OPCW Inspectors, 2013 (Yousef Albostany/Local Committee of Arbeen/Associated Press)

Despite these violations being strongly condemned by the international community, it may be more feasible to reach unanimity on issues related to chemical weapons than crimes against humanity or war crimes. Indeed, evidence of the use of chemical weapons provided by the OPCW may be perceived as more legitimate and impartial than evidence of serious violations of Human Rights and International Humanitarian Law. The OPCW can rely on a large support from the international community since 192 States are parties to the Chemical Weapons Convention. Moreover, the obligation on all States Parties to cooperate with the OPCW to facilitate the work of the inspection team may explain why evidence provided by the OPCW Fact-Finding Mission is more likely to be accepted as objective by the permanent members of the Security Council.

Curiously, comments on Resolution 2235 have been mostly focused on the political aspect of this resolution and less on its legal aspect although it clearly deals with the issue of attributing responsibility for a violation of International Law. This may be explained by the fact that Resolution 2235 does not actually touch upon the consequences of the attribution of responsibility for the use of chemical weapons. Which measures should be taken or which accountability mechanism should be established to hold the individuals or entities accountable is left for subsequent decision by the Security Council. The purpose of identifying those responsible for the use of chemical weapons may be more political than legal as it would result in potentially delegitimising the parties to the conflict that used chemical weapons against civilians. In other words, it may influence the decision of the other States to provide support for these parties to the conflict, considering the risk of being associated with the use of chemical weapons. Thus, if Resolution 2235 can be seen as a positive step towards holding the perpetrators accountable, it remains a very small step as it is not certain that the Security Council would agree on establishing an accountability mechanism.

Conclusion

Resolution 2235 is definitely a first step towards accountability for the violation of the prohibition on the use of chemical weapons. To this extent, it introduces the issue of accountability and the objective of ending impunity within the broad context of the situation in Syria. No concrete measures have been taken in relation to holding the perpetrators accountable until Resolution 2235, partly because of the repeated use of the veto power by Russia and China preventing a referral of the situation to the International Criminal Court (ICC). Resolution 2235 could therefore be seen as a promising sign of change.

Resolution 2235 establishes an unprecedented mechanism that could potentially lead to further development. It shows that the Security Council is able to create a neutral, impartial entity whose decisions are likely to be accepted as legitimate by all the Security Council’s Member States. This can be seen as very encouraging considering the fact that a recurring argument to justify the veto against referring the situation to the ICC is the absence of impartial and objective evidence. A similar investigative mechanism focused on the commission of crimes against humanity and war crimes may possibly be more adapted to overcome these diverging points of view. It is important to note, however, that evidence on the commission of crimes against humanity and war crimes reported by the Independent International Commission of Inquiry established by the Human Rights Council has been insufficient to trigger a response from the Security Council. In spite of this, the broad mandate of the Joint Investigative Mechanism to identify the responsibility of individuals and entities (governmental and non-governmental) may lead the way to a more comprehensive and more flexible approach to responsibility.

At this stage, it is difficult to determine in a definitive way whether the consensus on accountability for the use of chemical weapons will lead the way to holding the perpetrators accountable for the commission of crimes against humanity and/or war crimes. One must wait to see how the Security Council’s Member States will receive the first report of the Joint Investigative Mechanism to have a clearer vision on this issue. It will also depend on which accountability mechanisms will be set up, if any.

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MEET THE AUTHOR

Auriane Botte is a Ph.D candidate at the University of Nottingham. Auriane’s research interests broadly cover the fields of International Criminal Justice, International Security Law, United Nations Law and State responsibility.