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

Part two of an examination of international legal approaches to chemical weapons amid regime change in Syria.

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SYRIA AND THE OPCW

Syria’s conformity with the Chemical Weapons Convention proved problematic almost immediately after its ascension in August 2013. Experts quickly detected discrepancies and deviations in Syria’s initial declaration from anticipated disclosures, prompting the OPCW to mandate a Declaration Assessment Team (DAT) to assess Syria’s chemical weapons stockpiles and facilities for verification purposes in April 2014.^[2] DAT’s findings forced Syria to modify or amend their initial declaration 20 times to account for untrue or unreported discoveries.^[3] For example, the initial declaration was found to have omitted approximately 360 tons of sulfur mustard, and thousands of chemical munitions.^[4] Syria also failed to initially disclose its possession of the nerve agent ricin.^[5] When discovered, Syria amended their initial declaration by disclosing the location of a chemical weapons production facility dedicated to producing ricin in Al-Maliha.^[6] However, Syria claimed that the entire ricin stockpile had been destroyed prior to ascension, exempting them from OPCW verification.^[7] Syria later asserted that the ricin production had been for medical purposes; in such instance, the Al-Maliha facility would not have been considered a production facility as defined by the Convention, contradicting their earlier disclosure.^[8]

Subsequent incidents have further substantiated claims that the Syrian government has been in a state of non-compliance with the Chemical Weapons Convention since its ascension. In the spring of 2014, just months after ascension, a Fact-Finding Mission (FFM) was mandated by the OPCW to investigate allegations of chemical weapons attacks in Syria. The village of Talmenes was purportedly subject to a toxic chemical attack in April 2014.^[9] Witnesses to the attack reported that they observed a helicopter flying over the area, followed by warnings on hand-held radios and loudspeakers of an impending chemical attack.^[10] Two barrel bombs were dropped, followed by a whistling sound, a muted explosion, and a yellow gaseous cloud.^[11] Subsequent inspection of the remains of the barrels revealed unique features, including stabilizing fins, external markings indicating “CL₂”, and an improvised appearance.^[12] The villagers attempted to flee into a geographic depression in the valley, unaware that heavy chemicals such as chlorine gas naturally sink into lower areas.^[13] 200 villagers were affected, and two children died.^[14]

A similar situation occurred in Al Tamanah, a Syrian village which had fallen under the control of opposition forces.^[15] Five chemical weapons attacks were similarly carried out, all involving helicopters, radio warnings, whistling barrel bombs, improvised fins, and chlorine odor.^[16] Lacking adequate supplies or knowledge, medical staff attempted to use carbonated drinks like 7Up and Coca Cola to decontaminate exposed victims.^[17] Eight deaths result from two separate incidents.^[18] In Kafr Zita, the pattern re-emerged across 17 reported attacks.^[19] Interviewees consistently described witnessing barrel bombs being dropped from helicopters, followed by whistling sounds and muted explosions, then a strong chlorine-like odor.^[20] 122 individuals were treated in increasingly-dire medical circumstances – of the two hospitals in town, one was impacted by chemical weapons during an attack, and the other was completely destroyed by conventional weapons the following month.^[21]

The proceeding year, a cluster of chemical weapons attacks were reported in several villages under the Idlib Governorate, including Sarmin and Idlib City. All six instances involved the same fact pattern: a helicopter reported flying overhead, dropping at least one barrel-shaped cylinder with stabilizing fins, followed by a muted explosion, a green-yellow gaseous cloud, and a chlorine-like odor.^[22] In Sarmin, fatalities include the aforementioned family of six.^[23] In Idlib City, victims needed to be transported to hospitals in other villages, because the Idlib City hospital had been bombed several hours prior.^[24]

In the summer of 2015, the town of Marea was hit by at least seventy bombs over three incidents, including several chemical weapons.^[25] In the first incident, a five-day-old newborn infant was exposed to toxins and died.^[26] In the second incident, 52 cases of chemical exposure were recorded, all instances of secondary contamination.^[27] The FFM investigating the incidents determined “with the utmost confidence” that at least two individuals were exposed to sulfur mustard, shown above to be a component of the Syrian Arab Republic’s chemical weapons arsenal.^[28]

In the fall of 2016, Kafr Zeita devolved into intense conflict. Five armed groups were present in the region, including Syrian Arab Republic forces and Al-Nusra Front, the latter of which would ultimately depose President Al-Assad in 2024.^[29] More than 100,000 civilians were displaced by the conflict in less than a month.^[30] After opposition forces took control of the region, barrel bombs containing industrial chlorine cylinders (marked “CL₂”) were dropped from helicopters, resulting in muted explosions, green-yellow gas, and a strong chlorine odor.^[31] The FFM’s investigation was impeded by the actions of Russian investigators who blew up a tunnel at the site of the incident, destroying potential evidence.^[32] Ultimately, the FFM was still able to conclude that the chlorine cylinders dispersed a toxic chemical as a weapon.^[33]

In July 2020, the OPCW adopted a decision recognizing and condemning the use of chemical weapons by the Syrian Arab Republic. The OPCW listed two incidents in March 2017 wherein aerial bombs containing sarin were dropped from a Su-22 Syrian military aircraft in southern Ltamenah, affecting at least 76 persons, and one cylinder containing chlorine was dropped from a helicopter onto an Ltamenah hospital, affecting at least 30.^[34] As of December 24, 2024, the Secretariat of the OPCW announced that it still had not received information from the Syrian Arab Republic indicating where the chemical weapons used in the Ltamenah attacks were developed, produced, stockpiled, and stored.^[35]

The aforementioned developments clearly demonstrate that the Syrian Arab Republic remains in non-compliance with the Chemical Weapons Convention. Given the secretive and illicit nature of President Al-Assad’s chemical weapons program, it is likely that only the former President himself and a handful of his most trusted military officers know the location of the remaining chemical weapons stockpiles and production facilities.

MOVING FORWARD

Four days after President Al-Assad fled the country, the Israeli Defense Force conducted a bombing campaign targeting military facilities and suspected chemical storage sites in Syria.^[36] To date, no remnants of chemical stockpiles have materialized.^[37] The political and security situation in Syria remains volatile.^[38] However, three rebel groups – including the currently empowered Hayat Tahrir al-Sham – have issued statements pledging their support of international efforts seeking to eliminate the Syrian chemical weapons program.^[39] Furthermore, the Chemical Weapons Convention provides the interlocutors and caretakers of Syria with a legal framework for international cooperation in the destruction of chemical weapons and production facilities. In holding that Syria’s legal obligations to the Convention remain valid,^[40] the OPCW has extended to the new administration an opportunity to be recognized as the legitimate government of the Syrian Arab Republic under international law. Furthermore, this action will maintain the structural cohesion of Syria’s commitment to the Convention. Recognizing the new government as a unique and novel state would necessarily reset all temporal and substantive requirements of the Convention to which Syria is already obliged. Syria’s caretakers have signaled interest in compliance with the OPCW, and a productive discussion between the Director-General of the OPCW and the interim foreign minister and President Ahmad al-Sharaa was held in February 2025.^[41]

Optimism notwithstanding, the OPCW and its signatories must move quickly and remain vigilant to achieve total elimination of chemical weapons in Syria. Non-state actors and terrorist cells are still active in Syria and may attempt to acquire any stashed chemical weapons before the current administration can discover their location. The Islamic State remains active in Syria, and has shown their willingness to use improvised chemical weapons as part of their military campaigns in Iraq and Syria from 2014 to 2017.^[42] Al-Assad loyalists, including Alawite minority extremists, may seek to find and use these chemical weapons as a means of starting an insurgency and regaining control.^[43] President Al-Sharaa himself may reconsider his position, believing that adding chemical weapons to his military arsenal will increase his hard power in the region. As Foreign Affairs writers Gregory Koblentz and Natasha Hall suggest, history may favor utilization over surrender. Libyan leader Muammar al-Qaddafi failed to use his chemical weapons, and was ultimately killed by rebels in a NATO-led military campaign, whereas former President al-Assad used his chemical weapons and maintained power for over two decades.^[44] Irrespective of the potential user, the OPCW and its State Parties clearly have a strong incentive to locate and destroy remnant chemical weapons in Syria as quickly as possible.

Finally, beyond chemical weapons and production facilities, it is imperative that the OPCW and its State Parties timely identify and locate former Syrian chemical weapons experts. Over the course of four decades, Syria has mastered the production and technical deployment of deadly nerve agents and chemical weapons munitions. Intrinsic to the accrual of this mastery is the human expertise that necessarily follows. Following President al-Assad’s removal from power, an estimated 300 scientists and engineers knowledgeable in the production of chemical weapons may now be in search of new employment.^[45] Their expertise could prove valuable to states and non-state actors seeking to improve their chemical weapons capabilities, including North Korea, Iran, and terrorist organizations such as the aforementioned Islamic State.^[46] These experts must be considered war criminals complicit in the production and usage of chemical weapons in direct violation of international law, and prosecuted as such. Individual sanctions, such as those imposed in 2017 and 2018 by the United States on 271 laboratory employees believed to be complicit in the production and usage of chemical weapons in Syria,^[47] could serve as effective deterrent mechanisms for both individuals formerly involved with the deposed Syrian government and prospective chemical weapons scientists in other regimes.

The international community has been afforded an unprecedented opportunity to discover and eliminate sequestered chemicals weapons in Syria. Through the legal frameworks afforded by the Chemical Weapons Convention, and embodied in the OPCW, these chemical weapons can be identified, secured, and appropriately destroyed while fostering international cooperation with an emergent government occupying a geopolitically-crucial space. However, the OPCW and its global signatories must act with focus, speed, good faith, and due caution. The fates of countless civilians turn on who reaches these chemical weapons first.

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

^[2] Michael Crowley & Malcolm Dando, Regul. of toxins and bioregulators under the Chem. Weapons Convention and the Biological and Toxin Weapons Convention, Peace Stud. and Int’l Dev., at 104 (24 Mar. 2024); OPCW, Syria and the OPCW, supra.

^[3] Gregory D. Koblentz & Natasha Hall, Syria Still Has Chem. Weapons: How to Get the Country’s New Rulers to Help Eliminate Assad’s Deadly Arsenal , Foreign Aff.s, Dec. 19, 2024, https://www.foreignaffairs.com/syria/syria-still-has-chemical-weapons.

^[4] Id.

^[5] Crowley & Dando, supra, at p. 104.

^[6] Id.

^[7] Id.

^[8] Id.

^[9] Third Rep. of the OPCW Fact-Finding Mission in, ¶¶ 5.2, 5.6, U.N. Doc S/1230/2014 (Dec. 18 2024).

^[10] Id. ¶¶ 5.7-8.

^[11] Id. ¶¶ 5.10-12;

^[12] Id. ¶ 5.12.

^[13] Id. ¶¶ 5.16-17.

^[14] Id.

^[15] Id. ¶¶ 5.28-31.

^[16] Id.

^[17] Id.

^[18] Id.

^[19] Id.

^[20] Id.

^[21] Id.

^[22] Idlib Spring 2015, supra, ¶¶ 3.25-42, 3.94-98.

^[23] Id.

^[24] Id.

^[25] Rep. of the OPCW Fact-Finding Mission in Syria Regarding Alleged Incidents in Marea, Syrian Arab Republic August 2015, ¶¶ 3.7-31, U.N. Doc. S/1320/2015 (Oct. 29, 2015).

^[26] Id. ¶ 3.9(d)

^[27] Id. ¶ 3.21

^[28] Id. ¶ 4.6

^[29] Rep. of the OPCW Fact-Finding Mission in Syria Regarding the Incident of the Alleged Use of Chems. as a Weapon in Kafr Zeita, Syrian Arab Republic 1 October 2016, ¶¶ 3.5-32, U.N. Doc. S/2020/2022 (Jan. 31, 2022).

^[30] Id.

^[31] Id. ¶¶ 6.9, 7.21-37, 7.56

^[32] Id. ¶¶ 6.10, 8.4, 8.15

^[33] Id.

^[34] Addressing the Possession and Use of Chem. Weapons by the Syrian Arab Republic, ¶¶ 1(a)-(c), U.N. Doc. EC-94/DEC.2 (July 9, 2020).

^[35] Rep. by the Director-General, Progress in the Elimination of the Syrian Chem. Weapons Programme, ¶ 36(a), U.N. Doc. EC-108/DG.3 (Dec. 24, 2024).

^[36] Mina Rozei, Fate of Syrian Chem. Weapons Uncertain After Assad’s Fall, Arms Control Ass’n (Jan./Feb. 2025), https://www.armscontrol.org/act/2025-01/news/fate-syrian-chemical-weapons-uncertain-after-assads-fall.

^[37] Id.

^[38] Id.

^[39] Koblentz & Hall, supra.

^[40] OPCW, OPCW urges Syria to fulfil Chemical Weapons Convention obligations (Dec. 12, 2024), https://www.opcw.org/media-centre/news/2024/12/opcw-urges-syria-fulfil-chemical-weapons-convention-obligations.

^[41] 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.

^[42] Koblentz & Hall, supra.

^[43] Id.

^[44] Id.

^[45] Id.

^[46] Id.

^[47] Id.