Sarin and Syria–Geneva Protocols on Chemical Warfare and the Rule of Law

  • 09/06/2013
  • Terelle Jerricks

By James Preston Allen, Publisher

In February 2012 the last surviving veteran of the Great War, or as Americans were told, “the war to end all wars,” died. Florence Green was nearly 111 when she died in Norfolk, England, and she never saw the grim horror of gas warfare in the trenches between Germany and France.

The world community under the aegis  of the League of Nations (the precursor of the  United Nations) was horrified by the deployment of chemical weapons on both sides during World War I. It wasn’t until Sept. 7, 1929 that the Geneva Protocols on Chemical Warfare was registered as a treaty– more than a decade after the end of the war.

Obviously, that wasn’t the last war. But in every conflict since, there has been a growing  reticence and moral abhorrence over the use of chemical weapons. So much so that when the Nazis gassed the Jews in concentration camps during World War II, it was deemed a “war

crime.” And the perpetrators responsible are, even now, still being prosecuted.

The United States has signed on twice to the Protocol treaties–once in 1925 and again in 1975. Yet, we have one of the largest, if not the largest, stockpiles of chemical and biological weapons in the world and have used ones like Agent Orange in the Vietnam War.

One interesting note to all of this is that tear gas is included on the list of chemical agents that are not for military use but is not banned for “riot suppression” domestically either.

Sarin gas is on the list of chemicals prohibited from use on domestic populations. And I have found several references supporting this interpretation.

In recent times the United Nations Protocol Against Chemical Weapons has been interpreted to cover internal conflicts as well international ones. In 1995, an appellate chamber of the International Criminal Tribunal for the former Yugoslavia stated that, “there had 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.”

In 2005, the International Committee of the Red Cross concluded that customary international law includes a ban on the use of chemical weapons in internal as well as international conflicts.

The question now before the U.S. Congress, as well as the United Nations, is what to do with a violation of international law on chemical warfare?  The president should not, and must not, act alone like we have done so many times in the past. Nor should it be the burden of just one nation to enforce these protocols.  The dilemma facing President Obama after his bluster of sword rattling about crossing “the red line” on the use of sarin gas is what to do with a coalition of the unwilling: a Congress that is divided, an electorate that is skeptical of yet another Middle East conflict and a politically split U.N. Security Council.

This might seem simplistic for a man educated on constitutional law, but if the facts are in and the Assad government in Syria can reasonably be accused of violating international law, why waste your time arguing with Congress?  Pack up Attorney General Eric Holder, Secretary of State John Kerry then take the case against Beshar Al-Assad and his generals to the international court at the Hague, in Belgium. Present the case and ask for an indictment!

We like to hold ourselves up to be a nation of laws, as so we like to tell the world. But if we don’t follow the laws that apply universally, then we are no more moral or righteous than those whom we call murderers, tyrants or terrorists. The use of chemical weapons in Syria was not a direct act of aggression against the United States, our citizens or territories. This does not amount to the necessity of an Act of War by Congress! Nor by default in the absence of congressional action,  give the President the authority to act without congressional consent, unless there were a further eminent threat.

In other words, the President must prove to the world and the people of this nation that we actually stand behind our treaties and our laws. Take Mr. Assad to the international court and charge him with crimes against humanity. Then you may have the standing to do something with

the military to arrest those convicted of mass murder and illegal use of siren gas on a civilian population. Until then Congress should vote NO on the authorization of force by this president.


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