By Professor Barry Kellman
President Obama’s and Secretary-General Rasmussen’s statements, vowing to hold accountable anyone who uses chemical weapons, are altogether consistent with international law. The prohibition against the use of chemical weapons has ancient roots, codified in the Geneva Protocol and made binding in the Chemical Weapons Convention. Use of chemical weapons is an international crime specifically included within the jurisdiction of the International Criminal Court. The prohibition against their use is an absolute limit of international law. This may never be done by anyone.
The meaning of “hold accountable” deserves consideration. If it means that Assad will be prosecuted sometime after his ouster, add it to the list of his crimes – crimes that can be prosecuted only if he survives. From Assad’s perspective, the prospect of facing an extra charge relating to use of chemical weapons might seem incidental. More important is that the use of chemical weapons could readily justify UN Security Council authorization of force.
These warnings were not designed, of course, to lay out a brief about permissible punishment for the use of chemical weapons but to offer the prospect of punishment as deterrence against their use. To be optimally effective, the threat of punishment must be seen as realistic not only by Assad himself but by anyone who is or has enabled him to have and use these weapons and who might still influence him: if those weapons are used, the tentacles of international law enforcement will apprehend, extradite and prosecute you to an extremely unpleasant end. The prospect of these people being held accountable, specifically for the use of chemical weapons, might convince them to get Assad to refrain.
Under international law, this would include everyone in Assad’s regime who has enabled or assisted the procurement, deployment and use of chemical weapons. And accountability would necessarily extend to the international traffickers who, in defiance of the tight web of global trade regulation, delivered key chemical agents for making weapons. Fortunately, some of these suppliers are already behind bars for extended durations, but those who remain would readily meet the standards of aiding and abetting an international crime.
Even more significant is the warning, also well-grounded in international law, to Assad’s state sponsors: Russia and Iran. Back in the day, states could not be held accountable for what they did themselves, much less accountable for what another state might do. But in modern international law, aiding and abetting commission of an international crime is no less of a crime because of having been committed by a senior state official. Chemical weapons are simply and entirely outside the boundary of legitimate military activity; their use will be an international crime of the first magnitude. If the evidence points to state sponsorship of those weapons, then there is no legal reason why responsible officials of sponsoring states should escape accountability.
These warnings of the prospect of accountability, offered in pursuit of peace, exemplify how international governance under law should and does work.
Barry Kellman is Professor of International Criminal Law and Director of The International Weapons Control Center at DePaul University College of Law.