The Art of Facts

A LEGAL BLOG about Fact-finding and Armed ConflicTS

UN Report on chemical weapons in Syria: The facts, nothing but the facts…?

The Report on the alleged use of chemical weapons on 21 August 2013 in Syria was released on 16 September through a Note of the UN Secretary-General (UNSG). The inquiry was carried out by the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic, established by the UNSG. Based on the environmental, chemical and medical samples collected, the UN Mission concluded that there was clear and convincing evidence that chemical weapons have been used on 21 August 2013 in the Ghouta area of Damascus in the ongoing conflict between the parties in Syria, also against civilians, including children, on a relatively large scale (Report, paras. 27-28). The Report specifically established the use of surface-to-surface rockets containing the nerve agent sarin.

To say that it was eagerly awaited, in particular by the US, France and the UK, is an understatement, amid polarized discussions with Russia on how to turn the Geneva deal between John Kerry and Sergei Lavrov into a UN Security Council Resolution.

The context of the investigation itself was pretty unique. The UN Mission was already in Syria on 21 August to investigate other incidents of the use of chemical weapons and was instructed by the UNSG to focus on that latest incident. This is sadly ironic when the other fact-finding body investigating the conflict in Syria, the International Commission of Inquiry on Syria created by the Human Rights Council, has been denied access to the Syrian territory since its inception in 2011 (except the anecdotal invitation of Carla Del Ponte, member of the Commission, by the Syrian authorities to visit Syria in her “personal capacity”, an invitation rejected by the Commission for obvious reasons). Most importantly the UN Mission’s work will not end with this report as it is tasked with investigating other allegations of the use of chemical weapons in Syria.

The UN Mission’s findings are based on a very rigorous methodology and a wide range of evidence, with highly technical appendices included in the Report, in particular the full laboratory analyses. The terms used, such as “traceability” and “chain of custody procedures”, are more those of a criminal investigation than traditional human rights fact-finding work. This was to be expected due to the very nature of the weapons being investigated. The UN Mission applied the Organisation for the Prohibition of Chemical Weapons and the World Health Organisation standard operating procedures, protocols and guidelines specifically designed for documenting this type of weapons.

The Report is interesting in many ways: the investigatory methods; the expertise and means of the UN Mission compared to other stakeholders documenting such incidents (Physicians for Human Rights recently produced Fact Sheets to provide guidance to doctors on how to react to a chemical weapon attack); the selection process to identify survivors to be interviewed, based on the nature of their symptoms or how detail and clear their accounts are; and the safety and security issues for such investigations.

However it also begs a fundamental question, relevant for many fact-finding bodies: can fact-finding be only and strictly about the facts? Two particular aspects stand out: one relates to the issue of inferences (or deductions) and to what extent some conclusions can be drawn from certain factual findings; the other has to do with the legal qualification of facts once they are established. I am aware these discussions may sound theoretical and at odd with the tragedy and gravity of what happened that day in Syria but it is somehow useful to better understand how the findings of the UN Mission will be interpreted.

As the first information emerged about the attacks on 21 August, the question of who was to blame quickly became the most disputed one. Unsurprisingly it also came out during the discussions on the mandate of the UN Mission and the negotiations with the Syrian government. According to its Terms of Reference (ToR), the Mission had to ascertain the facts related to the allegations of the use of chemical weapons and to gather relevant data and undertake necessary analyses for this purpose and to deliver a report to the UNSG (Report, para. 1). The Mission had no role whatsoever in identifying which party to the conflict was responsible. The scope of the facts to be established was strictly limited to whether or not chemical weapons were used. For example, the inspectors did not include evidence or findings on the issue of the number of casualties caused by the attacks.

Yet, even prior to the publication of the Report, some US and French state officials claimed that, based on the evidence their intelligence services collected, the Syrian governmental forces were to blame. The logic behind those claims was precisely about interferences: based on information about the delivery systems (i.e. munitions) used to carry the chemical agents and the type and density of the gas, those officials deduced that the Syrian regime was responsible because the Free Syrian Army or other armed groups did not possess such weapons and could not store nor have the expertise to mix this type of gas. The same reasoning has been made since the release of the UN Mission Report. On the contrary, Russia labeled the Report as “one-sided” and “biased” and repeatedly stated that it was not within the mandate of the Mission to determine who was responsible.

In other words, the key question is whether, from the primary facts clearly established by the UN inspectors on the actual use of chemical weapons, one can infer other facts on the party to the conflict responsible of such use. The rules on evidence are useful to understand this distinction. For example, the California Evidence Code defines “direct evidence” as “evidence that directly proves a fact without inference or presumption, and which in itself, if true, conclusively establishes that fact” (para. 410). “Inference”, on the other hand is “a deduction of fact that may be logically and reasonably drawn from another fact or group of facts found” (para. 600, b). Of course the more credible the evidence regarding primary facts is, the stronger the inference will be. The nature and the specificity of the evidence on primary facts can also help to deduce other facts.

Prior to the publication of the Report, Human Rights Watch using its own research stated, “the evidence concerning the type of rockets and launchers used in these attacks strongly suggests that these are weapon systems known and documented to be only in the possession of, and used by, Syrian government armed forces” (here). The UN Report itself provides evidence that could serve the same logic such as technical analyses of the type of munitions used and of the trajectories of the rockets (Appendix 5). The next step is then to interpret this information. From details on the trajectories one could deduce that the surface-to-surface rockets were fired from governmental forces controlled areas. On the contrary, one could claim that rebels may have seized such munitions when they took control of some governmental military bases. However many experts argued that when considered as a whole the evidence gathered by the UN Mission seems to indicate that the Syrian army was responsible for the use of chemical weapons, especially if combined with other information, such as the reported interception of a phone conversation from an official within the Syrian Ministry of Defence (here).

The question of the legal qualification of the facts on the use of chemical weapons is also about a basic deductive process. The UN Mission had no mandate in this regard. As a result it did not collect the type of information a human rights fact-finding body would gather for the purpose of establishing the elements of certain violations of international law. It only concluded that civilians were also among the victims, including children.

However in his Note transmitting the Report, the UNSG used various legal qualifications. He pointed out that the use of chemical weapons was a war crime, a grave violation of the 1925 Protocol for the prohibition of the use of gases and of other relevant rules of customary international law (Note, para. 1) as well as a grave violation of international law (Note, para. 4). Interestingly, prior to the publication of the Report the UNSG referred to crimes against humanity having been committed by the Syrian regime when answering a question by a journalist about the upcoming Report (here).

Even if the International Criminal Court (ICC) Statute does not list the use of gas in times of non-international armed conflict as a war crime, this could still be a war crime as a violation of other IHL rules on the protection of civilians. One may also wonder whether the attacks on 21 August alone could constitute a crime against humanity. The Report referred to the use of chemical weapons “on a relatively large scale”. The legal definition of the crime against humanity requires that certain acts are committed in the context of “a widespread or systematic attack against a civilian population”. However a single act, if linked to a widespread or systematic attack, can qualify as a crime against humanity (see, ICTY, Kupreskic et al., (Trial Chamber), January 14, 2000, para. 550 and Kordic and Cerkez, (Trial Chamber), February 26, 2001, para. 178).

This new Report will certainly contribute to the existing practice in the field of fact-finding. But beyond those debates, the UN Mission’s findings should serve to increase the pressure on states to ensure that those responsible for the litany of crimes committed in Syria are held accountable. It is foolish to claim that the recent Geneva agreement on chemical weapons will put an end to the suffering of the hundreds of thousands of victims in Syria. A referral of the situation in Syria to the ICC by the UN Security Council will not stop the atrocities committed there every day, but it would at least give some hope to the victims.

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