The Formation of the Legal Framework Prohibiting Chemical Weapons with Regard to Non-State Actors

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Faculty of Law

The Formation of the Legal Framework Prohibiting

Chemical Weapons with Regard to Non-State Actors

Heleen Huijgen

Master’s Thesis International and European Law: Public International Law

Supervisor: Prof. dr. T.D. Gill

Second Examiner: Mr J.C. van den Boogaard

15 May 2018

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Abstract

Multiple incidents in the Syrian Arab Republic and also the recent incident in the United Kingdom illustrate that the use of chemical weapons forms a real threat. It is feared that non-State actors will increasingly use chemical weapons. In part, this may be explained by the fact that the international legal framework regarding chemical weapons does not apply to non-State actors. In this thesis I have examined the legal and practical implications of this international legal framework. I started with the analysis of different sources of international law to see how applicable international law developed. What stands out is that the current norm prohibiting chemical weapons is strong and unambiguous, but that it took a long time to get to this point. Then, I investigate what mechanisms are in place to prevent non-State actors from using chemical weapons. Also, I look at the tension between the norm and these enforcement measures. Although there is a strong norm prohibiting chemical weapons, it is questionable whether the mechanisms in place can achieve the intended result preventing non-State actors from using chemical weapons.

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These incidents show that the use of chemical weapons is not just an empty threat. And although chemical weapons are often seen as a lesser threat than other Weapons of Mass Destruction (WMD), such as biological or nuclear weapons, they are the only WMD that have been employed by national governments since World War II.7_{Common groups of chemical}

weapons are mustard agents, hydrogen cyanide, tear gases, psychotomimetic agents, toxins and nerve agents.8_{In the period from December 2015 to November 20, 2016, there have been 65}

potential incidents of the use of chemical weapons reported.9_{Chemical weapons are}

characterized as the “poor man’s atomic bomb”, since they are relatively cheap and can impact

1 Deutsch, A. How Syria continued to gas its people as the world looked on, Reuters. 17 Augustus 2017. 2 Ibid; OPCW, OPCW Fact-Finding Mission Confirms Use of Chemical Weapons in Khan Shaykhun on 4

April 2017, 30 June 2017.

3 OPCW, OPCW Fact-Finding Mission in Syria Continues Investigations into Allegations of Chemical Weapons Use, 7 February 2018.

4 Statement by H.E. Ambassador Peter Wilson to the OPCW, 87th Session of the Executive Council 13-16 March 2018.

5 Statement by the North Atlantic Council on the use of a nerve agent in Salisbury, 14 March 2018; US Department of State, Attributing Responsibility for the Nerve Agent Attack in the U.K..

6 Statement by H.E. Ambassador Peter Wilson to the OPCW, 87th Session of the Executive Council 13-16 March 2018.

7 Weitz, R., Syria and Beyond: The Future of the Chemical Weapons Threat, Proliferation Papers, No51, December 2014.

8 OPCW, Fact Sheet 4: What is a chemical weapon?, March 2016; Weitz, R., Syria and Beyond: The Future of the Chemical Weapons Threat, Proliferation Papers, No51, December 2014.

9 OPCW, S/1444/2016, Report of the OPCW Fact-Finding Mission in Syria Regarding the Incident of 2 Augustus 2016 as Reported in the Note Verbal of the Syrian Arab Republic Number 69 Dated 16 Augustus 2016, 21 December 2016.

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9 a large area.10_{But also significant is the fact that technologies and materials that are used}

extensively throughout the world for civilian purposes can easily be diverted to produce chemical weapons agents.11_{Chemical weapons can be manufactured in civilian chemical plants}

using facilities and materials that are completely legitimate. This phenomenon is called Dual-use and it makes tracking, monitoring and safeguarding from misuse extremely difficult.12

The ubiquitous and widely available nature of agents which are used to make chemical weapons makes these a welcome instrument for non-State actors to use.13_{To quote Joseph Ballard,}

Senior Officer for the Office of Strategy and Policy at the Organisation for the Prohibition of Chemical Weapons (OPCW):

The rising threat posed by non-State actors, the pace of economic development and the evolution of science and technology were all shaping the future of the global disarmament and non-proliferation regimes. Moreover, the use of chemical weapons by non-State actors was no longer a threat, but a chilling reality.14

Where States can use sophisticated chemical weapons, non-State Actors are more likely to use improvised chemical explosive devices.15_{Moreover, non-State actors normally lack the heavy}

weapons and other sophisticated delivery devices needed to weaponize and deliver deadly chemicals near a remote target. However, this is not always the case; in 2014 ISIS did obtain such delivery systems and there are strong indications that they were indeed capable of using chemical weapons, but there is no official confirmation of use.

There is an international legal framework regarding the regulation of chemical weapons, which is primarily addressing State agents. The main goal of this thesis is to investigate if the international legal framework is also applicable to non-State actors. This leads to the following research question: to what extent does the international legal framework regarding chemical

weapons apply to non-State actors? The findings of this research will provide a structured view

of the current legal framework and will contribute to the current debate whether there is a

10 Lord Lyrell (General Rapporteur), Chemical and biological weapons: the poor man’s bomb, North Atlantic assemble Draft General Report, 1996; Weitz, R., Syria and Beyond: The Future of the Chemical Weapons Threat, Proliferation Papers, No51, December 2014.

11 Ibid.

13 Unal, B. &Aghlani, S., Use of Chemical, Biological, Radiological land Nuclear Weapons by Non-State Actors: Emerging trends and risk factors, Chatham House, Emerging risk report, 2016.

14 UN Meeting Coverage and Press Release, States Must Step Up Efforts to Check Spread of Deadly Weapons as Non-State Actors Exploit Rapid Technological Advances, Speakers Tell Security Council, Security Council 7985th Meeting, 28 June 2017. (viewed on: 2-5-2018).

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10 need for a new International legal mechanism specifically directed towards the use of chemical weapons by non-State actors.16

To obtain a meaningful answer to this research question, the thesis will be divided into four chapters, each with their own topic; the development of the norm against chemical weapons, the role of the chemical weapons conventions, the obligation of States toward non-State actors and the tension between the creation of the norm and possible enforcement mechanisms. In the conclusion the findings of the different chapters will be combined. The recurring theme in these chapters will be the historical development of the norm prohibiting chemical weapons, on the one hand by looking at text of treaties, protocols and conventions and on the other hand by looking at the establishment of customary international law. In addition, it will be examined if and when this norm prohibiting chemical weapons is applicable in international armed conflicts and in non-international armed conflicts. For this purpose I will use recognized sources of international law and apply them on the formation of the norm against chemical weapons and other aspects of the legal framework. This will be done at the basis of inter alia treaty law, customary international law, humanitarian law.

Chapter 1 will describe the development of the international norm prohibiting the use of chemical weapons. The objective is to investigate how part of the international legal framework regarding chemical weapons became increasingly integrated in customary law. Critical events, treaties and codifications that led to the strong agreement with regard to the prohibition of chemical weapons will be discussed. Starting at the Hague Conventions of 1899, then to the horrible recollection of the use of gas in World War I, and ending with the creation of Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or other Gases, and the Bacteriological Methods of Warfare.

Chapter 2 will discuss the Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons, and on their Destruction (CWC). Different ways in which the CWC tries to strengthen the norm against chemical weapons will be investigated. Subsequently, it will be discussed if there is a customary norm prohibiting the use of chemical weapons in internal conflicts.

Chapter 3 will set forth the role of States and the role of the Organization for the Prohibition of Chemical weapons in preventing the use of chemical weapons by non-State actors. Moreover, the applicable framework of International Humanitarian law will be discussed with regard to non-State actors using chemical weapons.

16 DRAFT Convention for the Suppression of Acts of Chemical and Biological Terrorism, Unofficial translation, Explanatory note Russian Federation, 6 April 2016.

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11 Chapter 4 will focus on responsibility after a chemical attack occurs. Subsequently, the tension between the existing norm prohibiting chemical weapons and the possible enforcement measures.

The last chapter will be the conclusion, here an answer to the research question will be provided.

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Chapter 1. Building the Norm Against Chemical Weapons

The comprehensive CWC17_{didn’t come into existence overnight. Attempts to prohibit the use of}

poison as a weapon have a long history, dating perhaps as far back as 500 BC.18_{There are some}

critical events, treaties and codifications in history that led to the strong norm against the prohibition of chemical weapons that exists today. In this chapter the main events will be discussed. By researching the evolution of the norm against chemical weapons, it can be identified how part of the international legal framework regarding chemical weapons, became increasingly integrated in customary law.

1.1 The Hague Conference of 1899

The starting point for the historical analysis will be the Hague Conference of 1899. At that moment in time there was not yet a norm for prohibiting chemical weapons, either codified or of customary nature. At the end of the 19th_{century the concept of non-international armed}

conflict did not yet exist. Before the Hague Conference there had been some attempts to restrict the use of poison weapons. It is, however, questionable to what extent those attempts can be seen as evidence for the existence of a coherent norm against poison weapons.19

Moreover, it is also debatable how far these early prohibitions on the use of poison can be compared to later, multilateral binding treaties, since they were always concluded between only two States.20_{Still, it can be seen that at the end of the 19}th_{century there was a need for a}

comprehensive agreement about chemical weapons between multiple States. The need for an agreement can be explained by the growing internationalization of the world and rapid technical innovation, which forced States to consider the potential threat of future methods of warfare.21

The Brussels Declaration of 1874 could be seen such an attempt; it tried to put restraints on the instruments of war, in particular through to Article 13(a). This article prohibited the use of poison and poisoned weapons.22_{Although the Brussels Declaration never took effect, because}

some States were unwilling to adopt it as a binding instrument, it did lay the foundation for the rules for the conduct of war on land agreed at the Hague Peace Conferences of 1899 and 1907.23

17 Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992.

18 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.648. 19 Ibid, p.647.

20 Ibid, p.648.

21 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.648. 22 Art 13, Projects of an international declaration concerning the laws and customs of war, Brussels, 27

Aug 1874.

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13 The first Hague Conference took place during two months in 1899, with 26 States participating.24_{While it is suggested that in the literal sense the Conference achieved nothing in}

terms of disarmament, the delegates of the 26 governments reiterated the core principle that weapons may not have unlimited power to injure an enemy, due to emerging technologies.25

Within this context they opened the dialogue to discuss the question of unnecessary suffering with respect to newly invented weapons.26_{The Final Document of the first Hague Conference,}

as signed on 29 July 1899, consisted of four main sections and three additional declarations. This final document contains two sections that that are relevant for the emergence of the norm against chemical weapons.

First, main section II ‘Laws and Customs of War on Land’, prohibits the employment of poison or poisoned arms.27_{The records of the conference indicate that this provision was}

apparently agreed without controversy, partly due to the fact that the provision was directly lifted from art 13(a) of the Brussels Declaration of 1874.28_{Art 13 (a) arguably voiced a}

pre-existing norm relating to the use of poison in warfare between States. This might suggest that at this point the prohibition on the use of poison had become an uncontested norm.

The second section is found in Declaration II – On the Use of Projectiles the Object of Which is Diffusion of Asphyxiating or Deleterious Gases (Declaration Concerning Asphyxiated Gases). It is suggested that this fragment of the text is more comparable with how we define present-day chemical weapons.29_{This declaration provides that ‘[t]he Contracting powers agree}

to abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases’; and that this prohibition is only binding on the Contracting Powers ‘in the case of a war between two or more of them’.30_{There is, however, an interpretative dispute on}

the scope of the prohibition, because of the extremely restrictive wording of the declaration.31

This has to do with the word ‘sole’ in the declaration. The restrictive side argues that even if the fumes of an explosion may cause death by asphyxiation, it is not forbidden, because it is not its ‘sole’ purpose.32_{The more comprehensive interpretation holds that it should not be narrowly}

24 UNIDIR, The Role and Importance of the Hague Conferences: A Historical Perspective, 2017, p.2. 25 J.P. Zanders, International norms against chemical and biological warfare: an ambiguous legacy,

Journal of conflict and security law, Vol 8. No.2, 2003, p.395.

26 C, Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.649. 27 Convention(II) with respect to the laws and customs of war on land and its annex: regulations

concerning the laws and customs of war on land, The Hague, 29 July, 1899, Available from ICRC, Accessed 3 September 2017.

28 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.650. 29 M. Asada, A path to a Comprehensive prohibition of the use of Chemical Weapons under

international law: From the Hague to Damascus, Journal of Conflict &Security Law, 216, Vol.21 No.2, p.155.

30 Ibid; Declaration (IV,2) concerning Asphyxiating Gases. The Hague, 29 July 1899

31 M. Asada, A path to a Comprehensive prohibition of the use of Chemical Weapons under

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14 interpreted, since it does not create a new law, but recognizes earlier condemnation of the use of toxic gases.33

It is interesting to remember that at this point in history, gas projectile weapons had not actually been developed yet. One might wonder why two prohibitions that on first glance look the same to us, the prohibition against poison or poisoned weapons in main Section II and the prohibition against asphyxiating gases in Declaration II, are being codified in two separate sections. At this point in time the relationship between the customary norm against poison (Section II) and the ban on gas (Declaration on asphyxiating gasses) was neither obvious nor assumed.34_{The records of the conference therefore reveal the codification of two distinct}

norms that only in retrospect came to be viewed connected.35_{The Hague Conference started}

with the attempt the create a norm against the use of poison and gas in international conflicts. However, there are still a lot of ambiguities as will be proven by history.

1.2 World War I

In 1899 there was already a norm for the prohibition on the use of poison and the use of gas projectiles, but from history we know that during World War I, from 1914-1918, the first wide-scale use of chemical weapons happened. Despite the Hague Declarations, this new technology of gas warfare became a reality. During the war both sides used chemical weapons by employing both gas cylinders and gas projectiles. In response to the accusation of violating the Hague Declaration, both sides used arguments to justify the use of the weapons, also as party of the Declaration, revealing the weaknesses of the Declaration.36_{In particular, both sides invoked the}

restrictive interpretation of the scope of the Declaration, returning to the battle about the meaning of ‘sole’. [T]o abstain from the use of projectiles the sole object of which is the diffusion of asphyxiating or deleterious gases’. The first justification of the use of the weapons was that, with regard to the use of gas cylinders there was no violation, because the gas they used was diffused through cylinders specifically designed for that purpose and not by projectiles as prohibited by the Declaration. Secondly, with regard to the release of gas projectiles, which is explicitly prohibited by the Declaration, it was argued that the emission of gases was merely incidental to the explosion of the shell and that it was not the sole purpose of those shells. Thirdly, both sides argued that their use was a lawful exercise of the right of reprisal to the earlier use by the other side. Lastly, Article 2 of the Hague Convention IV Respecting the Laws and Customs of War on Land, contained a general participation Clause. This would not have been a problem if the US was a party the Hague declaration. But since it was not, the

33 Ibid.

34 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.652. 35 Ibid.

international law: From the Hague to Damascus, Journal of Conflict &Security Law, 216, Vol.21 No.2, pp.155-156.

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15 Declaration ceased to apply, when in 1917 the US joined the war, resulting in the non-applicability of the provisions of the Declaration Concerning Asphyxiating Gases.

It is, however, not the case that strong condemnation of the use of chemical weapons existed from the beginning of the deployment of chemical weapons during WWI. The opinions regarding the use of chemical weapons within the military establishment were mixed.37_{On the}

one hand, it could have military advantage; the use of gas had proven to give an advantage in some tactical situations, in combination with an unprepared enemy. On the other hand, the deployment of gas remained specialized and could only rarely replace conventional weapons. After the war, the debate on the use of chemical weapons in warfare arose again, now between military and medical officers. Proponents (a small but strong minority) of the use of these weapons, often argued that gas was no more inhumane than the conventional methods of warfare that we know. 38_{Some went even go so far as to argue that they would be even more}

humane than conventional weapons, as they has the potential to be non-lethal.39_{But not all}

were in favor of the use of chemical weapons in warfare, because a lot of people simply felt that the use of gas undermined their professional code of honor. Another major reason to oppose the use of gas was that it not only killed and wounded combatants, but it also threatened to harm non-combatants, undermining a longstanding distinction that was considered crucial to the military profession.40

At this point it becomes clear that the distinction that had previously been made in the text of the Hague Conventions between the two norms, poison on one side and gas projectiles on the other, disappeared. The emergence of poisonous gasses as weapons was recognized and the use of these weapons in warfare condemned by many.41_{Also the public response to the use}

of these weapons was one of outrage and horror and it put chemical warfare on the Agenda of the League of Nations.

1.3 Run up to the Geneva Protocol of 1925

Due to the fact that on a large scale both military, scientists and the public were outraged by the effects of chemical weapons during WWI, which brought the topic into the public domain, chemical weapons became a prominent topic on the agenda of the just founded League of Nations.42_{May 1920 the League ordered the Permanent Advisory Commission on Military, Naval}

and Air Questions (PAC) to examine the issue of chemical weapons ‘with a view to some agreement being reached internationally.43_{In October 1920 the PAC delivered its report,}

condemning the employment of gases against non-combatants, but arguing that gas was no

37 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.653. 38 Brown Scott, ed., Proceedings of the Hague peace conferences, p.366.

39 S.Everts, A Brief History of Chemical War, Features, 2015 (viewed on: 2-5-2018).

40 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.657. 41 Ibid. p. 655.

42 M. Bothe, Convention on the Prohibition of the Development, Production and use of Chemical weapons and on their destruction, United Nations Audiovisual Library of International Law, 2011, p.1. 43 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.657.

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16 crueler than any other methods of warfare against combatants. The outcome of this report brought an international ban on chemical weapons into question. However, the League didn’t give up so easily and referred the subject of chemical weapons to The Permanent Mandates Commission of the League of Nations. In its response, this Commission suggested that the League member governments should address question of what penalties should be imposed upon States making use of poison gas. With this instruction, the Commission ducked the question of a ban and instead opened the debate on penalties for the use of poisoned weapons. Moreover, the International Committee of the Red Cross (ICRC) mobilized support for an actual ban on chemical weapons, by appealing to member States to reach an agreement on an absolute prohibition of poison gas.44_{Additionally, more and more alarming reports of the future}

of chemical warfare reached the public, which added to the public fears.45_{Due to these three}

factors, the view that chemical weapons were necessary for national security and the argument that gas was a relatively humane method of warfare came under attack.46

In 1921 the Assembly of the League of Nations set up a Temporary Mixed Commission on the Reduction of Armaments (TMC), with a subcommittee to investigate chemical warfare.47_{On 27}

September 1924, the Fifth Assembly of the League of Nations stated that a draft Convention created by the TMC should be submitted to both member and non-member governments. The content of the draft convention consisted of issues relating the control of international trade in arms, munitions and implements of war. During the Conference, the US lobbied for a complete prohibition of all international trade in gas weapons. However, this proposal was challenged, due to the fact that it would discriminate against states who were unable to make chemical weapons on their own. Another problem also arose; the problem of controlling chemical materials that could also be used for peaceful purpose, also known as dual-use material. Although the difficulty of dual-use trade was acknowledged, the delegates stressed the need to formalize a formal condemnation of chemical weapons. As a result it was agreed to add the Geneva Protocol of the Use in War of Asphyxiating, Poisonous or Other Gases and Biological Methods of warfare at the final resolution of the conference.

1.4 The Geneva Protocol of 1925

The Geneva Protocol was signed on the 17th_{of June 1925, outlawing the use of chemical}

weapons. The Protocol prohibits the Use in War of Asphyxiating, Poisonous or Other Gases, and of all analogous liquids, materials or devices.48_{The text appears to create a strong unambiguous}

norm. However, the protocol possesses some shortcomings. In this thesis I will discuss two of

44 J. Mirimanoff, The red cross and biological and chemical weapons, International review of the Red Cross, 10:111, 1970.p.302.

45 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.657. 46 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.657. 47 Ibid.

48 Protocol for the Prohibition of the Use in War of Asphyxiating, Poisonous or Other Gases, and of Bacteriological Methods of Warfare, Geneva, 17 June 1925.

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17 these shortcomings. Before turning to these shortcomings, it is also important to note that during World War II no chemical weapons were used during the conduct of hostilities. This was after the creation of the Geneva Protocol, so one could imagine this Protocol had some effect in at least this global armed conflict. Since it created a clear ban on the first-use on lethal chemical weapons.

The first defect is the disputed interpretation of the scope of the protocol. During the course of the Conference, no country made any reference to the scope of the prohibition.49_{In the Geneva}

Protocol one can find no definition of which chemicals fall under the intended prohibition, making is hard to determine whether this Protocol creates a clear norm banning all chemical agents. This can be illustrated by looking at the different interpretations of what falls under the terminology used by the Geneva Protocol. It should be noted that the Geneva Protocol was drafted in a response of the horrific use of chemical weapons in WWI and logically the main goal of the Protocol was to prohibit the use of chemical weapons to prevent such incidents in the future. It is clear that the Geneva Protocol created a clear ban on the first use of lethal chemical agents. However, the question is whether ‘poisonous or other gases’ covers riot control agents (RCA) and herbicides. Allowing the use of RCAs and herbicides under the Protocol could provide grey area’s in the ban against chemical weapons. The effects of RCAs are incomparable with those if lethal chemical weapons. However, it could be seen as a slippery slope, opening the door for other uses of chemicals in a hostilities situation. The same applies to herbicides, although the effects are worse than those of RCAs, since it could have huge long- lasting consequences for the environment.

If RCA’s are still allowed under the protocol, the implication would be that the norm is not yet as strong as intended, there are still grey areas and no unambiguous customary international norm would be created yet. There are two interpretations of the text of the protocol; the restrictive interpretation and the comprehensive interpretation. Among a few other countries, the USA (not a contracting party to the Protocol) and Australia adopted the restrictive interpretation.50

According to their interpretation some RCA’s are not prohibited by the protocol. It is not surprising to see that (decades later) both countries used RCA’s in the Vietnam War.51_{On the}

other hand, the majority of the Contracting Parties have adopted a comprehensive interpretation of the protocol; the scope also covers RCA’s and herbicides. This is also reflected in the voting results of the UNGA Resolution 2603A of 1969.52_{In this resolution the parties}

recognize that the Geneva Protocol embodies the rules of international law prohibiting the use of any chemical agents of warfare in an international armed conflict. The resolution was adopted by 80 Yes, 3 No votes, and 36 Abstentions. Translated to the 67 states of the Geneva

49 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.659. 50 M. Asada, A path to a Comprehensive prohibition of the use of Chemical Weapons under

51 Ibid.

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18 Protocol the result would be 33 Yes, 2 No, and 25 Abstentions. Despite a majority support for the comprehensive interpretation, there was still some distance to go before it can be claimed that the protocol reflected customary international law. At the time of the Geneva Protocol it can be said that it is questionable whether a customary norm banning any use of chemical agents existed. However, it can be rightfully claimed that there is at least an international norm prohibiting the first use of lethal chemical agents in an international armed conflict.

The second limitation is that the protocol only prohibits the use of chemical weapons in war. The protocol starts with the text “Whereas the use in war…”, indicating it is only applicable in case of “war”. The question, however, is which definition of war is applicable regarding this protocol. Is it only applicable with a declaration of war, which is an outdated concept, or also without this declaration, collectively called armed conflicts? And is it applicable in a non-international armed conflict? To answer the first question: it is generally understood that present-day laws of war apply to all wars, declared and undeclared.53_{However, at the end of}

the 19th_{and beginning of the 20}th_{century it was common to refer to ‘war’ in a treaty. ‘War’ at}

that time meant a declared war, creating a state of war. During the first half of the 20th_century,

a declaration of war became outdated and wars could start without a declaration of war. The Geneva Protocol of 1925 was drafted under the assumption of the more modern interpretation and it is understood that it is applicable in case of declared and undeclared wars.54_{So the}

Geneva Protocol is applicable to the present-day international armed conflicts. It is, however, the question if it is also applicable in a non-international armed conflict. It is doubtful that the scope of application of the Geneva protocol includes such conflicts, since no rules of international law were applicable to the internal conflicts within a State at the time.55_However,

it was only in 1949 that Common Article 3 of the Geneva conventions was adopted, that minimum rules of humane treatment were regulated in non-international armed conflicts by applying the law of war, for persons not or no longer participating in hostilities. We will return to this subject of International Humanitarian law, and then in more detail with customary international law later in this thesis. For now it will suffice to have a clear picture of the historical time line. Because of this time line, it is unimaginable that the Geneva Protocol was drafted with the intention to prohibit the use of chemical weapons in a non-international armed conflict. This view is also reiterated in 1969 in the UNGA Resolution 2603A; where emphasis is added that the use of chemical agents of warfare is contrary to the generally recognized rules of international law as embodied in the Geneva Protocol in an international armed conflict.56_{In the}

international law: From the Hague to Damascus, Journal of Conflict &Security Law, 216, Vol.21 No.2, p.163

54 Ibid.

international law: From the Hague to Damascus, Journal of Conflict &Security Law, 216, Vol.21 No.2, p. 164.

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19 Resolution 2603A the UNGA does not mention or even pays attention to the possibility that the Geneva Protocol could be applicable to non-international armed conflicts. This provides a very strong indication that the norm is not yet applicable in these situations

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Chapter 2. The International Legal Framework regarding Chemical

Weapons

After the Geneva Protocol it took almost 70 years before a new milestone in the restriction of chemical weapons would appear. In the centuries before, we saw the norm against chemical weapons grow stronger and stronger. At first there was only an international norm against the use of poison, with in parallel an international norm with regard to the prohibition on the use of gas projectile weapons, as codified in the Hague declarations. However, the wide-scale use of chemical weapons during WW I showed the gap in legislation, and as a response the two distinct norms merged into one. And with the creation of the Geneva Protocol, the norm of the non-use of chemical weapons became a stronger norm than before. It can be said that at this moment in time, an international norm regarding the prohibition of the use of lethal chemical agents in an international armed conflict existed.

One can see that with every convention, declaration or protocol regarding chemical weapons, the norm against chemical weapons grows stronger. States try to close lacunae identified in previous texts. This shows that (international) law is a living instrument; trying to improve the law with the newly gathered knowledge and trying to predict future shortcomings and anticipating on those.

The new step in the continuing building of the norm against chemical weapons came in the form of the Chemical Weapons Convention on the Prohibition of the Development,

Production, Stockpiling and Use of Chemical Weapons and on their Destruction (CWC). On 3

September 1992, the Conference on Disarmament, the single multilateral disarmament negotiating forum of the international community based in Geneva, adopted a new treaty regarding chemical weapons.57

In this chapter I will discuss ways in which the CWC tries to strengthen the norm against chemical weapons. Moreover, I will investigate if the CWC overcomes the previously mentioned defects of the Geneva Protocol (Chapter 1); the interpretation of the scope and the prohibition of the use in IAC and NIAC. Lastly, I will discuss if, next to a the codified norm against chemical weapons in the CWC, a stronger customary international norm is created prohibiting chemical weapons.

2.1 Progress in Building the Norm Against Chemical Weapons

First of all, one of the most notable features of the CWC is that it has the intention to create an even stronger norm than before. This becomes immediately clear when examining the text of the Convention. Not only does the CWC aim to completely exclude the possibility of the use of chemical weapons, it has an even higher goal: the elimination of an entire category of weapons of mass destruction (WMD); which includes nuclear, radiological, chemical and biological

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21 weapons).58_{The CWC builds further on the Geneva Protocol; this becomes clear while reading}

the preamble, which mentions that States reaffirm principles and objectives of and obligations assumed under the Geneva Protocol. And that it wants to do this for the sake of all mankind, to eliminate all weapons, by implementing provisions of the CWC, and thereby completing the obligations assumed under the Geneva Protocol.59_{The preamble finishes off with the conviction}

that the complete and effective prohibition of the development, production, acquisition, stockpiling, retention, transfer and use of chemical weapons, and their destruction, represents a necessary step towards the elimination of chemical weapons. The CWC is intended to be absolute in the norm against chemical weapons, the norm that had a long, and at times ambiguous history.

The second notable thing in the CWC, is the attempt to be as inclusive as possible in this Convention. For instance, the Geneva Protocol only counted roughly 650 words. This left a lot of matters unclear and created a battle on the interpretation of the scope of the Protocol. (Whether the scope is clear in the CWC, I will discuss in Section 2.2). In any case, to include as many variables as possible, the CWC consists of 165 pages; a preamble, 24 articles and 3 annexes - the Annex on Chemicals, the Verification Annex, and the Confidentiality Annex.

Another improvement of the CWC cannot be found in the text itself, but in the number of States that are party to the Convention. The CWC is the most widely recognized Convention regarding chemical weapons. Out of the 193 States recognized by the UN, 190 are party to the Convention and only three States, namely Egypt, North Korea and South Sudan, have not signed or acceded to the Convention. 60 _{The result is, that 190 States have the obligation to work}

towards the complete elimination of chemical weapons. To make it feasible to live in a world without chemical weapons, all States have to work together for this higher goal.

The last point I will discuss is the creation of an enforcement mechanism, the

Organisation for the Prohibition of Chemical Weapons (OPCW). None of the earlier declarations

or protocols contained a provision for enforcing the norm against chemical weapons.61_The

mission of the OPCW is to implement the provisions of the CWC in order to achieve a world that is free of chemical weapons and of the threat of their use, and in which cooperation in chemistry for peaceful purposes for all is fostered.62_{Doing so is based on four key provisions; (1)}

destroying all existing chemical weapons under international verification by the OPCW, (2) monitoring the chemical industry to prevent new weapons from emerging, (3) providing assistance and protection to State Parties against chemical threats, and (4) fostering

58 Preamble, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992.

60 STATUS AS OF : 12-04-2017 05:00:30 EDT, United Nation Treaty Collection, Chapter XXVI, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction.

61 C. Jefferson, Origins of the norm against Chemical weapons, International affairs, 3(2014) p.659. 62 OPCW Mission Statement, www.opcw.org/about-opcw/mission, 9-6-2017.

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22 international cooperation to strengthen implementation of the Convention and promote the peaceful use the chemical industry.63_{The OPCW is a valuable tool for working towards a world}

free of chemical weapons.

2.2 Overcoming Defects of the Geneva Protocol of 1925

The Geneva Protocol created a norm banning any first-use of lethal chemical agents in an international armed conflict. The next two paragraphs will illustrate how the CWC tries to strengthen the norm, by closing the gaps in the Geneva protocol.

2.2.1 Definition of Chemical Weapons and Interpretation of Scope

Where the Geneva Protocol is lacking in a definition of the prohibited gases, the CWC tries to give a clear definition. This definition of chemical weapons needs to meet the objective of the CWC, and the only way to meet the objective, is by providing a comprehensive definition.64

Drafting such a definition65_{is especially difficult due to the fact that many chemicals are also}

used for civil purposes, the so called dual use.66_{The drafters of the CWC tried to strike a balance}

to create a definition of chemical weapons that is as comprehensive as possible to avoid any possible loopholes, but also that this definition does not hinder the legitimate use of chemicals.67_{This definition can be found in Article 2 of the CWC. A toxic chemical is defined as}

any chemical which through its chemical action on life processes can cause death, temporary incapacitation or permanent harm to humans or animals.68_{A precursor is defined as any}

chemical reactant which takes part at any stage in the production by whatever method of toxic chemicals.69_{These definitions cover an extremely wide range of chemicals; hence the CWC}

provides a list of purposes which are not prohibited under the Convention. This is called the general purpose criterion.70_{So toxic chemicals or precursor chemicals can be defined as a}

chemical weapon depending on their intended purpose.71_{One of those purposes not prohibited}

63 About OPCW, www.opcw.org/about-opcw/ , 9-6-2017.

64 Fact sheet 4, What is a Chemical weapon, Organisation for the Prohibition of Chemical Weapons, viewed on 18-2-2018.

65 Ibid.

66 L. Sydnes, Policy: update the CWC, Nature 496, 4 April 2013, pp. 25–26.

68 Art 2(2) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992.

69 Art 2(2) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992.

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23 under the Convention is law enforcement, including domestic riot control purposes.72_{One of}

the stumbling blocks of the Geneva Protocol was whether RCA fell under the intended scope of the Protocol. The CWC deals with RCAs and makes a distinction between toxic chemicals and RCAs. In Article 1, paragraph 5, it is expressly provided that RCAs cannot be used as a method of warfare. This could be explained by the fact that in a hostilities situation it may be difficult to distinguish between RCAs and lethal chemical agents and there would be the possibility for retaliations. However, the USA had maintained a policy of permitting the use of RCA in certain defensive military modes and maintained a more liberal interpretation of the CWC provision.73

They adhere to the interpretation that RCAs are not chemical weapons.74_{It can be concluded}

that the CWC definitely created a more clear and comprehensive definition of toxic chemicals and chemical weapons than the Geneva Protocol. However, as the example of the USA shows, there is still room for a liberal interpretation.

2.2.2 The Prohibition of the Use of Chemical Weapons in IAC and NIAC

As discussed in the previous chapter, it is plausible that the Geneva Protocol doesn’t cover the use of gasses in an internal armed conflict. While there is no explicit provision in the Geneva Protocol to that effect, the time of the drafting of the Protocol plays and important part in the understanding of the Protocol. At the time of drafting the Geneva Protocol, there were no rules or practice to regulate the conduct of hostilities in internal war.75_{This situation had changed}

drastically since the CWC was conducted. In international humanitarian law there were provisions created that not only covered international armed conflict, but also non-international armed conflicts, with the main examples being common Article 3 of the 1949 Geneva Conventions and 1977 Additional Protocol II (AP II) to the Geneva Conventions. Common Article 3 provides in cases of NIACs occurring on the territory of one of the parties to the Convention, that there are minimum guarantees for those not taking active part in hostilities.76_{This provision remained intact in the Nicaragua case before of the International}

Court of Justice, where the Court declared that Common Article 3 was a minimum yardstick in

72 Art 2(9)(4) Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992.

74 S1232(a), National Defense Authorization Act for Fiscal Year 2006, Public law 109-63 (6 January 2006), 119 STAT 3469.

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24 armed conflicts with a non-international character.77_{AP II is an amendment to the Geneva}

Conventions, with the aim to protect victims in a NIAC.78

Thus, it should be understood that the CWC intended to also create a prohibition of the use of chemical weapons in NIAC, since Article 1 of the CWC contains the phrase ‘Never under any circumstances’.79_{The CWC was drafted long after Common Article 3 and AP II were signed, so it}

is plausible that this phrase does mean that the CWC is applicable in NIACs. However, as often in International law, text alone is not necessarily determinative; it is also important to look at subsequent practice. For example the United States indicated in the Conference on

Disarmament it considered the sentence of Article 1 of the CWC, ‘Never under any

circumstances’, should be considered as 'never under any circumstance against any State'.80

This would indicate that at least the US did not consider the CWC applicable on NIACs. The ICRC released a report in 2005 stating that the CWC applies to all circumstances, including NIACs.81

However, they do not provide any concrete evidence for the support of this conclusion, other than referring to the text never under any circumstances of Article 1 of the CWC. They do provide evidence that several military manuals that have been used in NIACs, reaffirm the prohibition of the use of chemical weapons and cite the CWC.82

2.3 Customary international law in Internal Conflicts

From the overview given above it is plausible that there is a norm (codified and customary in nature) against the use of chemical weapons in an international armed conflict. It is still unclear if RCAs fall within this norm, but it can be said that the CWC codified a customary norm; the use of chemical weapons (others than RCAs) in an international armed conflict now amounts to a violation of a customary international norm. However, it is still unclear whether the use of chemical weapons in non-international armed conflicts also amounts to a violation of customary international law.

Another source of international law, besides convention law, is customary international law. Customary international law contains two elements; actual State practice and opinio juris of States.83_{To investigate whether the use of chemical weapons in a Non-international armed}

conflict is prohibited by customary international law, it is necessary to look at actual practice of

77 ICJ, Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), Judgement, I.C.J. Reports 1986,para. 218 .

78 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977.

80 CD/1007 (n99)4, para 4.

81 Henckaerts and Doswald-Beck, Vol I (n 23), p. 261. 82 Ibid, p.262.

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25 the use of chemical weapons in internal armed conflicts, but also at the international responses to such use. The first case I will use to try to establish if such a norm exists, is the incident regarding the use of chemical weapons by Iraq in in 1988 on the Kurdish Population. It is assumed that this incident worked as a catalyst for the negotiation of the CWC with its strong and unambiguous norm. The second case will be in the context of the conflict 25 years later in the Syrian Arab Republic.

2.3.1. The Halabjah incident

The first incident I want to investigate occurred in March 1988, when Iraqi forces bombarded the town of Halabjah with various chemical agents over the course of three days. 84_{The town}

suffered large numbers of chemical casualties. Almost 5000 Kurdish civilians were killed (mostly woman, children and elderly). It should be noted that this incident was never fully investigated; the investigation team of the UN did not visit the area where the alleged chemical weapons attack had taken place.85_{However, it is undeniable that the chemical attack did occur, and in}

this incident State practice can be assumed. The response of the international community will determine whether there is also opinio Juris, and indeed a customary international norm is present against the use of chemical weapons in an internal conflict.

In the Tadić case by the International Criminal Tribunal for the former Yugoslavia (ICTY) in 1999, this incident is discussed and there is an international judicial judgement that can help us with the establishment of opinio juris. Their decision is firm and unambiguous regarding the incident where it stated that ‘there undisputedly emerged a general consensus in the international community on the principle that the use of chemical weapons is also prohibited in internal armed conflicts’.86_{At a first glance this judgment seems to make crystal clear that there is}

opinio juris in the international community. Together with the State practice one can come to no

other conclusion than that there is indeed a customary norm regarding the use of chemical weapons in an internal conflict. However, it is open to question whether the ICTY correctly concluded the existence of such a norm, as will be argued below.

It can be argued that the ICTY misinterpreted several statements made by the international community condemning the use of chemical weapons, on which they based their judgement. It can be said that at least some statements could be just as easily be interpreted in a different manner, not supporting opinio juris prohibiting the use of chemical weapons in non-international armed conflicts.

For example, the ICTY claimed that the German representative in the UNGA expressed Germany’s alarm about reports of the use of chemical weapons against the Kurdish population

84 J. Ali., Chemical weapons and the Iran-Iraq war: a case study in noncompliance., The Nonproliferation review, Spring 2001,p.53.

85 UN Doc S/19823 (25 April 1988), paras 4,16,52. 86 Tadić (Jurisdiction, Appeals) (n 3) para 124.

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26 and referred to ‘breaches of the Geneva protocol and other norms of intentional law.’87_{But that}

wasn’t what German representative in fact said was:

Over past years the international community has repeatedly been confronted with the gruesome reality of the use of chemical weapons in the war between Iran and Iraq . We are also alarmed about reports of the use of chemical weapons against the Kurdish

civilian population. Breaches of the Geneva Protocol of 1925 and other norms of international law must be understood as an urgent warning to act and to meet our responsibility of providing for the speediest possible elimination of all chemical weapons worldwide.88

So the ICTY used ‘breaches of the Geneva protocol and other norms of intentional law” in the context of Iraqi use of chemical weapons against the Kurds. However, it is also possible that this reference should be seen in the context of the general use of chemical weapons in the Iran-Iraq war and not specifically related to the incident. Moreover, it is equally likely that the use of chemical weapons against the Kurdish populations was assessed as a breach of other norms of international law and not as a breach of the Geneva protocol.89_{This makes the statement of the}

German representative not as unambiguous as the ICTY wants us to believe.

Also the joint statements of European Community after the Halabjah incident condemned the continued use of chemical weapons in the Iran-Iraq war, but the statements mentioned nothing about the use of chemical weapons against the Kurdish population.90_{So it is at least}

questionable that the ICTY used their quotes of the European Community to show ‘general consensus’ on the prohibition on the use of chemical weapons in internal armed conflicts.91

Lastly, the ICTY also used a statement of the USA to support their position that there is indeed general consensus. In this statement the USA stated that the use of chemical weapons against civilian population is considered contrary to rules of customary international law applicable in internal armed conflicts. The ICTY interpret “rules of customary international law applicable in internal armed conflicts” as being the Geneva Protocol. However, it is also possible that such “rules of customary international law” refers to other sources and not just the Geneva Protocol.

87 Tadić (Jurisdiction, Appeals) (n 3) para 121. 88 UN Doc A/C.1/43/PV.31 (9 November 1988), 16.

international law: From the Hague to Damascus, Journal of Conflict &Security Law, 216, Vol.21 No.2, p.190; UN Doc S/RES/612 (1988) para 2.

international law: From the Hague to Damascus, Journal of Conflict &Security Law, 216, Vol.21 No.2, p. 191.

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27 One can question the opinion of the ICTY that there is indeed general consensus in the international community. It can be said that the legal examination of the ICTY is at least not completely clear and consistent. Reading the judgement of the ICTY, their statement seems clear: there is a customary norm against the use of chemical weapons in an internal conflict. However the analysis of the different statements referred to by the ICTY shows at least some ambiguities, since they could just as easily be interpreted differently. Subsequently, one could also look at this from a different perspective: if it is clear that there is general acceptance that weapons treaties also apply to internal conflicts, why isn’t this reflected in another weapons convention drafted at this period.92_{The Convention on Certain Conventional weapons did not}

mention internal conflicts until the Review Conference in 2001.

So for now I assume that the norm is not yet crystallized, and at least reasonable doubt exists on whether at this point in time there is already a customary norm that prohibits the use of chemical weapons in an internal conflict.

2.3.2. Catalyst for the Building a Stronger Norm

The incident in Halabjah and the ICTY judgment could be seen as a trigger for the negotiation of the Chemical Weapons Convention which came into force in 1993. The willingness of the future State Parties to the CWC to negotiate a strong norm prohibiting chemical weapons, demonstrates the motivation and the believe that there should be a customary norm prohibiting the use of chemical weapons in an internal conflict. A customary norm does not come into existence from one day to the next, it needs time to evolve. In my believe, at the time of the ICTY judgement there were still some ambiguities with respect to the question whether there is a customary norm that prohibits the use of chemical weapons in an internal conflict. However the need for an new convention with a stronger norm shows the necessity from States to create a strong customary norm where also the use of chemical weapons in a NIAC is prohibited. This idea is confirmed by the UN Security Council Resolutions.93_{The Security Council has adopted}

multiple resolutions indicating that the CWC can be applied in internal armed conflicts, specially related to the use of chlorine in the Syrian armed conflict in 2014 and 2015.94_{In the preamble of}

Resolution 2209 (2015) the Security Council noted that any use of toxic chemicals by the Syrian Arabic Republic would constitute a violation of the CWC.95_{The adoption of the Resolution}

92 United Nations, Convention on Prohibitions or Restrictions on the Use of Certain Conventional Weapons Which May be Deemed to be Excessively Injurious or to Have Indiscriminate Effects (and Protocols) (As Amended on 21 December 2001), 10 October 1980, 1342 UNTS 137.

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28 clearly confirmed opinio juris, since none of the geopolitical superpowers used their right to veto this Resolution and therefore believe that the use of chemical weapons in a NIAC amounts into a violation of the norm against chemical weapons.96_{Where the judgment of the ICTY in the}

Iraq-Iran war contained dubious interpretation and a customary norm could not be established yet, it lead to the willingness to create another stronger convention and the customary international law prohibiting the use of chemical weapons in an non-international armed conflict. Which is also reiterated by rule 74 of the ICRC.

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29

Chapter 3. Binding Non-State Actors to the Existing Norm

When assessing the emergence of the norm against the production and use of chemical weapons, it is clear that between the 1980s and the Chemical Weapons Convention it is becoming increasingly stronger. When a gap was identified in the legislation, it was filled by a new protocol, convention or other sources of international law, such as a resolution of the Security Council. To name one example, as discussed in Chapter 2, the Hague Declarations only prohibited the use of chemical weapons that have as their sole object the diffusion of asphyxiating or deleterious gases. This allowed both sides in WWI to construct legal justification for their use of chemical weapons. This gap was closed by the Geneva Protocol of 1925.

At this moment there is a strong norm, in the form of the CWC, which explicitly prohibits not only the use of chemical weapons, but also requires the elimination of an entire category of a weapons of mass destruction. In addition, one can also see a strong customary law prohibiting the use of chemical weapons, not only in intentional conflicts, but that this norm also applies to State parties in non-international conflicts.

The next question that needs to be answered is whether the CWC and the customary norm also apply to non-State actors. Could this be a new identified gap in the international chemical weapons legislation, or is there in fact legislation or a customary norm to restrain non-State actors from the use of chemical weapons? However, it can be concluded that both norms are applicable in internal conflicts; this is evidenced by the fact that the Security Council indeed found the CWC applicable on the incident in Syria in 2015.97_{It is still unclear whether certain}

provisions of CWC (or their equivalent is a customary norm) have direct or indirect effect on non-State actors.

3.1 Chemical Weapons Convention and Non-State Actors

When studying the CWC it does not become immediately clear whether the convention is applicable to non-State actors. Since the CWC is a treaty, it does not directly apply to non-State actors, unless there is a clear intention to also bind non-State actors. In that case there should be a specific provision in the treaty. Subsequently, it is questionable whether the mandate of the OPCW provides the authority to deal with the issue of the fight against chemical terrorism.

3.1.1. Chemical Weapons Convention as a State-centered Convention

International law regulates relations between States in different fields. The goal of international law is to provide for peaceful relationships between States, by means of all kinds of international rules and regulations.98_{It is clear that States are the primary and the most}

important subjects of international law.99_{Traditionally, a treaty is an international agreement}

97 UN Doc S/Res/2209 (2015), 6 March 2015.

98 Prodemos, Wat is intenationaal recht?, April 2015, p. 3. 99 Diakonia, Principles of Public international law, 11-15-2013.

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30 concluded between States in written form and governed by international law.100_{We speak of a}

State when three conditions are met; (1) it should have a territory with more or less fixed boundaries, (2) a population lives on that territory and (3) there is an effective authority (government), which exercises power and is recognized as the highest authority.101_{A treaty can}

also be concluded between a State and an International Organization; the requirement is that the International organization is an intergovernmental organization.102_{It is not possible for}

other entities, legal or natural persons to accede to an international treaty. However, this does not mean that there are no treaties that directly create rights and obligations for non-State actors. In particular human rights treaties and IHL treaties. The non-State actor is a relatively new player in International law.103_{The most striking problem is the power a non-State actor}

holds in combination with the lack of corresponding legal responsibility. Non-State actors are in most cases not a direct subject to international law.104_{But the assumption that no rules apply}

on non-State actors is false. This will be discussed in paragraph in 3.2.

The CWC has the form of any traditional international treaty, since only States are able to be party to the Convention. The whole Convention is focused on the rights and obligations of States. For example again the preamble: “The State Parties are determined [..]to exclude completely the possibility of the use of chemical weapons, through the implementation of the provisions of this Convention”.105_{From this statement one could deduce that the CWC is in no}

way applicable to non-State actors. However, this is not entirely true. International law can also regulate the actions of other entities, including non-State actors.106

In the case of the CWC this is reflected in Article VII regarding national implementation measures.107_{This is the only provision in the Convention with an implicit reference to non-State}

actors. Article VII states that “Each State Party shall […] prohibit natural and legal persons anywhere on its territory or in any other place under its jurisdiction as recognized by international law from undertaking any activity prohibited to a State Party under this

100 Article 2(1)(a), United Nations, Vienna Convention on the Law of Treaties, 23 May 1969, United Nations, Treaty Series, vol. 1155, p. 331.

101 Prodemos, Wat is intenationaal recht?, April 2015, p. 3.

102 Aricle 2(1)(i), United Nations, Vienna Convention on the Law of Treaties between States and International Organizations or between International Organizations.

103 M. H. Zarei, The Status of Non-State Actors under the International Rule of Law: A Search for Global Justice.

104 M. H. Zarei, The Status of Non-State Actors under the International Rule of Law: A Search for Global Justice.

106 Diakonia, Principles of Public international law, 11-15-2013.

107 Art. VII, Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction, Geneva, 3 September 1992.

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31 Convention, including enacting penal legislation with respect to such activity.”108_{The CWC}

contains only this implicit provision for prohibiting non-State actors from gaining access to, and using chemical weapons. The national implementation of the CWC by State Parties requires the adoption of a range of domestic legislative and administrative measures to make sure that each State Party can enforce the international obligations under the CWC at a national level.109_The

responsibilities of a State Party, set out in Article VII, paragraph 1, are manifold.110_{First of all,}

each State Party has to pass legislation that extends the prohibition of the Convention to cover legal and natural persons that are on their territory or under their jurisdiction.111_{In addition, it}

should be noted that the reference in Article VII to penal legislation suggests that it may be appropriate to punish such activity as a criminal offence. Secondly, any such penal legislations should extend to natural persons possessing the State’s nationality, regardless of where the activity was committed. And lastly, all State Parties are required to take measures necessary to ensure that prohibited activities do not occur in any place under their control.112_{It can be}

concluded that a State Party has a clear responsibility with regard to preventing a chemical attack by a non-State actor on their territory, but also by a national of that State. Because in accordance with Article VII, each State Party is required to extend the Article I Obligations that it has undertaken as a State to natural and legal persons.113_{To revert to Article I, this provides}

inter alia that each State Party to the Convention undertakes never under any circumstances to

develop, produce, otherwise acquire, stockpile or retain chemical weapons, or transfer, directly or indirectly, chemical weapons to anyone. This results that Article VII in combination with Article I creates a due diligence obligations for State Parties to prevent any development, produce, use, etc. of chemical weapons. So the CWC provides a State Party with two sets of obligations; an obligation of result and an obligation of conduct.

Even though Article VII is the only provision that implicitly mentions non-State actors, it provides a very strong obligation to the State parties. But there is more: the CWC also provides another way to address the modern threat of the use of chemical weapons by non-state actors.

3.1.2 The Role of the OPCW in Chemical Terrorism

The OPCW plays an important role in preventing chemical terrorism, since the CWC contains provision that give the OPCW the authority to engage in the struggle against chemical terrorism by non-State actors.114_{When looking at the mandate of the OPCW, the OPCW has the important}

task to “achieve the object and purpose of this Convention, to ensure the implementation of its

108 Ibid, art. VII para 1(a).

109 R. Takur & E. Haru, The Chemical weapons convention: Implementation, challenges and opportunities. United Nations University Press, 2006, p.51.

110 Ibid. p.103. 111 Ibid. 112 Ibid. 113 Ibid. p.104.

The Formation of the Legal Framework Prohibiting Chemical Weapons with Regard to Non-State Actors

Faculty of Law