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Chair of International Organization and Human Rights DEPARTMENT OF POLITICAL SCIENCE Chair of International Organization and Human Rights INTERNATIONAL LAW, THE UNITED NATIONS AND THE USE OF CHEMICAL WEAPONS IN THE SYRIAN CONFLICT ASSESSMENT OF CAPABILITIES AND LIMITATIONS SUPERVISOR Prof. Francesco FRANCIONI CO-SUPERVISOR Prof.ssa Francesca Maria CORRAO CANDIDATE Domitilla Palumbo Matr. 634952 Academic Year 2018/2019 A mio padre, a mia madre, a mio fratello. TABLE OF CONTENTS TABLE OF CONTENTS ................................................................................................................................ 1 TABLE OF ABBREVIATIONS ..................................................................................................................... 3 INTRODUCTION ........................................................................................................................................... 4 CHAPTER ONE The Syrian Civil War and its Implications ................................................................... 8 1.1 Syria. History, geopolitics and identity .................................................................................................... 8 1.2 The new century: towards the Syrian Civil War ................................................................................... 11 1.2.1 The political perspective .................................................................................................................. 12 1.2.2 The economic perspective ............................................................................................................... 14 1.2.3 The socio-religious perspective ....................................................................................................... 16 1.3 Syria: from a regional to a global battlefield ......................................................................................... 18 1.4 United Nations response until the year 2013 ........................................................................................ 24 1.4.1 UN-Arab League Peace Plane and the Ghouta attack ..................................................................... 24 CHAPTER TWO The International Legal Framework of the Chemical Weapons Use in War ......... 28 2.1 The prohibition of chemical weapons under international law ............................................................. 28 2.2 International Treaties ............................................................................................................................. 28 2.2.1. The Chemical Weapons Convention .............................................................................................. 30 2.3 Customary International Law ................................................................................................................ 34 2.4 The application of the CWC in non-international armed conflict ......................................................... 37 2.4.1 The application of the CWC to non-state actors .............................................................................. 41 CHAPTER THREE The Application of the International Regime on Chemical Weapons ................. 43 3.1 Middle East chemical weapons development ........................................................................................ 43 3.1.1 The Syrian case ................................................................................................................................ 46 3.2 International community response to the chemical attack and the possible use of force ....................... 49 CHAPTER FOUR Legal Framework for the Elimination of the Chemical Weapons in Syria ........... 56 4.1 Russia and the United States: one step forward ..................................................................................... 56 4.2 Security Council Resolution 2118 .......................................................................................................... 58 4.2.1 General remarks ............................................................................................................................... 59 4.2.2 Legal shortcomings and contradictions ........................................................................................... 61 1 4.2.3 Prospects for International Criminal Justice in Syria ...................................................................... 63 4.3 Chemical weapons elimination: Syria and the OPCW ........................................................................... 68 4.3.1 Legal issues of the elimination process ........................................................................................... 73 4.3.2 Additional verification mechanisms in Syria .................................................................................. 75 4.4 The International Impartial and Independent Mechanism for Syria ...................................................... 77 CHAPTER FIVE International Law Prospective for the Use of Military Force in Syria .................... 81 5.1 New chemical attacks: the case of Khan Shaykhun and Douma ........................................................... 81 5.2 International law and military force: the counterproliferation policy ................................................... 84 5.2.1 Amendment to Article 51 ................................................................................................................ 88 5.3 The International Partnership against Impunity ..................................................................................... 89 CHAPTER SIX Humanitarian Intervention and R2P in Syria: Legal Basis ........................................ 91 6.1 International humanitarian law of non-international armed conflict ..................................................... 91 6.2 State practice over humanitarian intervention ........................................................................................ 93 6.2.1 The controversial doctrine of humanitarian intervention in light of the Syrian conflict ................. 97 6.3 From humanitarian intervention to R2P ............................................................................................... 102 6.3.1 The failure to protect in Syria: who was responsible? ................................................................... 104 6.3.2. The Responsibility Not To Veto ................................................................................................... 109 CONCLUSION ............................................................................................................................................ 111 Bibliography ................................................................................................................................................. 114 SUMMARY .................................................................................................................................................. 126 2 TABLE OF ABBREVIATIONS CSP Conference of the States Parties CWC Chemical Weapons Convention CWPFs Chemical weapons production facilities DAT Declaration Assessment Team EC Executive Council FFM Fact-Finding Mission FSA Free Syrian Army GDP Gross Domestic Product HTS Hay’at Tahrir al-Sham ICISS International Commission on Intervention and State Sovereignty ICJ International Court of Justice ICRC International Committee of the Red Cross IIIM International Impartial and Independent Mechanism ILC International Law Commission JIM Joint Investigative Mechanism JMIS Joint Mission in Syria LFP Labor force participation MENA Middle East and North Africa OCW Old chemical weapons OPCW Organization for the Prohibition of Chemical Weapons PKK Kurdistan Workers' Party PSI Proliferation Security Initiative R2P Responsibility to Protect RN2V Responsibility Not To Veto SNC Syrian National Council TASS Russian News Agency TS Technical Secretariat UAR United Arab Republic UN United Nations WMD Weapons of Mass Destruction 3 INTRODUCTION The Syrian civil war is now at its eighth year and the absence of any serious internal disorder experienced for 30 years under the autocratic regime built by Hafez al-Assad is by now a memory of the past. The political fragility of a state hidden behind the said autocratic regime, in addition to sectarian, regional and tribal division and the influence of external actors, have further contributed to lead Syrians into the civil war disorder. The Syrian civil war has led towards the gravest humanitarian disaster of the new century and the complete damage to the economy as well as towards the country’s destruction and damage to a number of cultural heritage locations, including several which belonged to UNESCO World Cultural Heritage sites (the figure is up to five)1. Today the country is the battleground of regional and international powers which, for different interests, want to maintain their sphere of influence in the Middle East. Although the international dimension has influenced in different aspects the tide of the war, creating a new favorable environment for the shift towards a civil war, it was the contribution given by few states in the proliferation of chemical weapons, namely Russia and Egypt, that led towards one of the main concerns of the international community as a whole: the repeated use of chemical weapons in the Syrian civil war. In this regard, the focus of the present dissertation concerns a deep analysis of the international consequences deriving from the use of chemical weapons by the Assad regime and the opposition forces. Given the seriousness of the crisis,
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