Lethal Inheritance: A Legal Approach to the Fate of Syrian Chemical Weapons in the Hands of a New Leader: Part I

Examining international legal approaches to chemical weapons amid regime change in Syria.

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            On the ides of March, 2015, a family of six bunkered down in their home in Sarmin, a small town in northwestern Syria under the control of insurgency forces.^[2] Several hours prior, the neighboring village of Qmenas had been subjected to a chemical attack; lacking their own field hospital, fourteen victims were sent to the hospital in Sarmin to receive medical treatment.^[3] Now fearing an impending attack on their own town, the family of six sought safety two floors before ground level.^[4] Their subterranean bunker would have provided an ideal shelter from conventional fire if typical explosive weaponry, such as missiles, had been used.

A helicopter flew twice overhead, each time dropping a barrel-shaped payload, followed by a whistling sound.^[5] One of these devices fell into the family’s ventilation shaft, descending through the house and making impact on the bottom floor, where the family had taken refuge.^[6] The device exploded, releasing lethal doses of chlorine gas, which seeped into the lowest sections of the house.^[7] While the mother, father, and son managed to escape to fresh air, the two daughters and grandmother were trapped in the basement.^[8] Rescue teams struggled to reach them, confronted by an overwhelming, pungent chemical smell emanating from the lower level. Ultimately, all six of the family members died from exposure to chlorine gas, either at the Sarmin field hospital or en route.^[9] Thirty-six other victims at the hospital were treated for direct exposure to chlorine gas that day.^[10] This chemical attack would be the first of four in Sarmin over the next two months.^[11]

            For over a century, international emissaries have developed legal frameworks and treaties seeking to eradicate the use of chemical weapons against soldiers and civilians alike. Global efforts began with the 1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, which aimed to prevent any future usage of poisonous gases after the world witnessed the horrors of chemical weapons in World War I.^[12] Currently, the predominant legal framework that controls State usage of chemical weapons is the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction (the Chemical Weapons Convention). Since the Chemical Weapons Convention entered into force in 1997, 193 States have signed the treaty, covering 98% of the world’s population.^[13] In 2023, the Chemical Weapons Convention achieved 100% destruction of all known chemical weapons stockpiles, and was awarded a Nobel Peace Prize for its humanitarian accomplishments.^[14]

            Given this success, the Chemical Weapons Convention is an effective solution to address novel issues and concerns regarding the proliferation, development, and deployment of chemical weapons. When evidence emerged suggesting that the government of the Syrian Arab Republic had intentionally used chemical weapons in attacks affecting their own civilian populace, the international community turned to the Chemical Weapons Convention to redress the situation.^[15] Now, in the wake of Syrian President al-Assad’s removal from power and the rise of a new government, the Chemical Weapons Convention may serve again as the foremost means of securing and extirpating Syria’s remnant chemical weapons arsenal.

BACKGROUND

            After gaining political independence in 1946, Syria quickly fell into a state of instability and turmoil.^[16] In 1970, President Hafez al-Assad rose to power, establishing an authoritarian regime focused on strengthening national security and recovering territory lost to Israel several years prior.^[17] In 1973, Syria engaged Israel in the Arab-Israeli War, where their Egyptian allies first introduced them to chemical weapons.^[18] Following their defeat, Syria became determined to develop an independent chemical weapons capability.^[19] With assistance from the Soviet military, Syria endeavored to develop an independent chemical weapons program.^[20] By 1985, American intelligence recognized the gravitas of Syria’s novel chemical weapons capability.^[21] Declassified reports from the Directorate of Intelligence indicated that Al-Assad intended to use his chemical arsenal as weapons of last resort if faced with military defeat and predicted that any successors were also likely to adopt this approach.^[22] After his father’s death, President Bashar al-Assad took power in 2000 and continued to maintain a strict authoritarian rule reliant on a powerful military force.^[23]

            Syria’s chemical weapons stockpile came under international scrutiny following a massive, government-orchestrated attack on the civilians of Eastern and Western Ghouta, Syria, on August 21, 2013.^[24] Over the course of several hours,^[25] exposed persons experienced convulsions, nausea, vomiting, miosis, oral secretion, difficulty breathing, and suffocation, to an estimated 1,500 deaths in total.^[26] A French intelligence investigation concluded that Syria was believed to have accumulated over 1,000 tons of chemical Sarin, and several tons of the lethal neurotoxic agent VX.^[27]Sarin is a highly toxic nerve agent that affects the peripheral and central nervous systems.^[28] In sufficiently large doses, Sarin produces acute cholinergic syndrome leading to convulsions, respiratory failure, and finally death.^[29] VX is a fast-acting highly toxic nerve agent that interferes with signals sent from the brain to the vital organs and other parts of the body.^[30] Exposure to one drop of VX on the skin can be fatal.^[31]

In addition to these weapons, Syria had developed a number of delivery systems, including the Scud-C missile platform, which can deliver any of the three toxic chemicals in Syria’s possession (Mustard Gas, Sarin, and VX) at a range of up to 500 kilometers.^[32] French intelligence further determined that the Syrian government deployed Sarin against targets in the domestic villages of Saraqeb and Jobar several months prior, indicating a pattern of chemical weapons use in civilian-occupied environments.^[33] Faced with mounting international pressure, Syria acceded to the Chemical Weapons Convention on October 14, 2013.

THE CONVENTION

The objective of the Chemical Weapons Convention is the elimination of all types of chemical weapons through a total prohibition on the development, production, acquisition, stockpiling, retention, transfer, and use of chemical weapons.^[34] State parties to the Convention are required to destroy any chemical weapons and production facilities in their ownership or possession or that are located in any place under their jurisdiction or control.^[35] Chemical weapons include toxic chemicals and their precursors, as well as munitions and devices designed to cause death or harm through contact with toxic chemicals.^[36] Precursors are chemicals used to produce such toxic chemicals.^[37]

            Upon entry of the Convention, a State Party is required to submit a declaration stating:

·      whether it owns, possesses, or otherwise has chemical weapons in its jurisdiction or control;

·      the precise location, quantity, and detailed inventory of such weapons;

·      whether it has any chemical weapons on its territory owned and possessed by another state;

·      whether it has transferred or received, directly or indirectly, chemical weapons from any other nation since January 1, 1946;

·      plans for the destruction of their chemical weapons;

·      whether it has old or abandoned chemical weapons on its territory;

·      whether it has any chemical weapons production facilities under its ownership, possession, jurisdiction, or control; and

·      plans for the destruction or conversion of such facilities.^[38]

The Convention exempts any chemical weapons buried on the State’s territory before January 1, 1977, as well as any chemical weapons dumped at sea before January 1, 1985, from these provisions.^[39]

            Any chemical weapons that a State Party does own, possess, or have territorial control or jurisdiction over must be destroyed within ten years of the Convention’s entry into force.^[40] Chemical weapons discovered after this initial declaration must be reported, secured, and destroyed.^[41] Chemical weapons production facilities are subject to regular, systematic verification to ensure all production of chemical weapons has ceased, conducted through on-site inspection and monitoring.^[42] Furthermore, State Parties must prohibit any “natural and legal persons” in their territory or under their jurisdiction from undertaking any activity prohibited to State Parties under the Convention.^[43] However, State Parties may develop, produce, or otherwise acquire, retain, transfer, and use toxic chemicals and precursors for purposes not prohibited by this Convention, such as research, medical, pharmaceutical, and protective purposes.^[44]

            The governing body of the Convention is the Organization for the Prohibition of Chemical Weapons (OPCW). All State Parties are accorded voting membership in the Conference of the State Parties (the Conference) to oversee the implementation of the Convention and make changes to the treaty where necessary.^[45] As the principal organ of the OPCW, the Conference is charged with considering any questions, matters, or issues within the scope of the Convention.^[46] The Conference meets annually, and members are given one vote each in ruling on procedural and substantive issues.^[47] Additionally, the Conference is responsible for electing and overseeing the activities of the Executive Council, which comprises forty-one members elected for two-year terms.^[48] As the executive organ of the OPCW, the Executive Council is responsible for promoting the implementation and compliance of the Convention by interacting with states and international organizations, overseeing the work of the Technical Secretariat, and corresponding with the United Nations General Assembly and the United Nations Security Council.^[49] In the event of suspected non-compliance, the Executive Council requests further information from concerned State Parties; failure to do respond may result in the Council’s recommendation for suspension, contingent on the Conference’s confirmation.^[50]

            Finally, the Annex of the Chemical Weapons Convention provides a classification schematic for toxic chemicals. Prohibited chemicals and precursors are identified as Schedule 1, 2, or 3, based on risk posed to the object and purpose of the Convention, lethal or incapacitating toxicity, past tendency to be stockpiled and used as a chemical weapon, and commercial production.^[51] Schedule 1 chemicals are the most dangerous and include Sarin, VX, sulfur mustards, nitrogen mustards, and ricin.^[52]

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^[1] Image from: https://www.france24.com/en/20130506-syria-un-del-ponte-chemical-weapons-gas-rebels-assad.

^[2] Rep. of the OPCW Fact-Finding Mission in Syria Regarding Alleged Incidents in the Idlib Governorate of the Syrian Arab Republic Between 16 March and 20 May 2015, ¶¶ 3.28-36, U.N. Doc. S/1319/2015 (29 Oct. 2015) [hereinafter Idlib Spring 2015].

^[3] Idlib Spring 2015, supra, ¶¶ 3.16, 3.28-36.

^[4] Id., ¶¶ 3.28-36.

^[5] Id.

^[6] Id.

^[7] Id.

^[8] Id.

^[9] Id.

^[10] Id.

^[11] Id., ¶ 3.25.

^[12] U.S. Dep’t of State, Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare (Geneva Protocol) (Sep. 25, 2002), https://2009-2017.state.gov/t/isn/4784.htm.

^[13] OPCW, OPCW Basics, https://www.opcw.org/about-us/opcw-basics#:~:text=OPCW%20is%20the%20implementing%20body,are%20193%20OPCW%20Member%20States.

^[14] OPCW, OPCW Director-General visits Syria; meets with Syrian caretaker authorities to discuss next steps in eliminating Syria’s chemical weapons programme (Feb. 8, 2025), https://www.opcw.org/media-centre/news/2025/02/opcw-director-general-visits-syria-meets-syrian-caretaker-authorities.

^[15] Kenneth D. Ward, Syria, Russia, and the Global Chemical Weapons Crisis, Arms Control Assoc. (Sept. 2021), https://www.armscontrol.org/act/2021-09/features/syria-russia-and-global-chemical-weapons-crisis#:~:text=Syria%20initiated%20the%20process%20to,the%20Western%20powers%20and%20Russia.

^[16] William L. Ochsenwald et al., Syria, Britannica (Feb. 27, 2025), https://www.britannica.com/place/Syria.

^[17] Id.

^[18] Directorate of Intel., Syria’s Offensive Chem. Weapons Capability, at 1 (Feb. 8, 2021).

^[19] Id.

^[20] Id. at p. 11.

^[21] Id., at pp. iii, 1.

^[22] Id., at p. iii.

^[23] Ochsenwald et al., supra.

^[24]Hum. Rts. Watch, Attacks on Ghouta: Analysis of Alleged Use of Chem. Weapons in Syria, at p. 1 (Sep. 2013).

^[25] Id. at pp. 7-13.

^[26] République Française, National executive summary of declassified intelligence: Assessment of Syria’s chemical warfare programme, at pp. 7-9, https://franceintheus.org/IMG/pdf/Syria_NESDI.pdf.

^[27] Id. at p. 3.

^[28] Inst. of Med. (US) Comm. on Health Effects Associated with Exposures During the Gulf War, Gulf War and Health: Volume 1. Depleted Uranium, Sarin, Pyridostigmine Bromide, Vaccines, Nat’l Inst. of Health (2000), https://www.ncbi.nlm.nih.gov/books/NBK222849/.

^[29] Id.

^[30] U.S. Army, Nerve Agent VX, https://www.cma.army.mil/nerve-agent-vx-fact-sheet/.

^[31] Nat’l Inst. for Occupational Safety and Health, VX: Nerve Agent, Ctrs. for Disease Control and Prevention (Apr. 26, 2024), https://www.cdc.gov/niosh/ershdb/emergencyresponsecard_29750005.html.

^[32] Id. at p. 4.

^[33] Id. at p. 6.

^[34] Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, pmbl., Sep. 3, 1992, 1975 U.N.T.S. 45 [hereinafter Chemical Weapons Convention]; Chemical Weapons Convention, supra, art. I, ¶ 1(a).

^[35] Id., art. I, ¶¶ 2-4.

^[36] Id., art. II, ¶¶ 1(a)-(b). Article II, ¶ 2 defines toxic chemicals to include any chemical which causes death, temporary incapacitation, or permanent harm to humans or animals. Article II, ¶3 defines precursors to include any chemical reactant which takes part at any stage in the production, by whatever method, of a toxic chemical, including binary or multicomponent systems.

^[37] OPCW, What is a Chemical Weapon?, https://www.opcw.org/our-work/what-chemical-weapon.

^[38] Id., art. III, ¶¶ 1(a)(i)-(c)(vii).

^[39] Id., art. III, ¶ 7.

^[40] Id., art. IV, ¶ 6.

^[41] Id., art. IV, ¶ 9.

^[42] Id., art. V, ¶ 3.

^[43] Id., art. VII, ¶ 1(a).

^[44] Id., art. VI, ¶ 1; Id., Annexes, Part VI, ¶ 2(a). For an interesting scientific discussion on dual-use consequences that may emerge when medical- or research-oriented chemical production has the intrinsic and inseparable potential to be easily converted to chemical weapons, see Crowley & Dando, infra.

^[45] Id., art. VIII, ¶ 9

^[46] Id., art. VIII, ¶ 19.

^[47] Id., art. VIII, ¶¶ 11, 17-18. Decisions on procedural issues are adopted by a simple majority; decisions on substantive issues are adopted by a 2/3rds supermajority.

^[48] Id., art. VIII, ¶¶ 20-21, 23. Members are elected by continent, in proportions as follows: 9 parties from Africa; 9 parties from Asia; 5 parties from Eastern Europe; 7 parties from Latin America; 10 parties from Western Europe; and 1 party from Asia and Latin America and the Caribbean. Id., art. VIII , ¶¶ 23(a)-(f).

^[49] Id., art. VIII, ¶¶ 30-37.

^[50] Id., art. XII, ¶ 2.

^[51] Id. Annexes, Schedules of Chemicals, ¶¶ 1-3.

^[52] Id., ¶ 1.