The Peace Palace building
The Peace Palace in The Hague, Netherlands, seat of the International Court of Justice | Photo: ICJ, wikimedia commons | Public Domain

Chemical Attacks under the Convention against Torture: A New Possible Avenue?

On the 8th of June 2023, Canada and the Netherlands initiated proceedings at the International Court of Justice (ICJ) against Syria for violating the Convention against Torture (CAT) by inter alia using chemical weapons against the civilian population. This would be the first time ever that the ICJ  had the opportunity to deal with chemical weapons in contentious proceedings. This blog post will briefly summarize the most pertinent legal questions and political implications that arise in the context of the ICJ proceedings. It will be demonstrated that the prohibition of chemical weapons is not based on a single legal framework. Rather, we need to look at the chemical weapons taboo comprehensively and from a perspective of multi-normativity.

Convention against Torture: Torture or Inhuman/Degrading Punishment?

The case initiated by Canada and the Netherlands is based on the Convention against Torture, which entails a provision establishing the jurisdiction of the International Court of Justice. According to Article 30 of the CAT, in case of a dispute concerning the interpretation or application of the treaty, parties to the dispute can initiate proceedings before the ICJ.

The CAT is the only treaty under international law that defines torture and at the same time allows for a case to be brought before the ICJ. It is important to note that the prohibition of torture is a peremptory norm of international law and a non-derogable right. Thus, States cannot justify torture by arguing that measures of torture were necessary for law enforcement purposes. For something to be considered as torture within the meaning of Article 1 CAT, several criteria need to be fulfilled: 1 there needs to be severe pain or suffering, 2 the pain or suffering needs to be inflicted intentionally, 3 the infliction of severe pain or suffering needs to fulfil a specific purpose, 4 and needs to be inflicted by or with the acquiescence of a state official.

The CAT not only prohibits torture but also inhuman or degrading treatment or punishment (Article 16 CAT). In order to ascertain whether a particular act amounts to torture or “merely” inhuman or degrading treatment or punishment, it is important to clarify whether the perpetrators were acting with a specific intent so as to obtain information or a confession or – in the context of chemical weapons use – to punish someone. Only if the perpetrator was acting with such an intent, the act committed amounts to torture.

Chemical Weapons Use in Syria as Torture or Inhuman or Degrading Treatment

In light of the above, it is of pivotal importance to clarify whether the use of chemical weapons in Syria fulfils the criteria of torture or inhuman and degrading treatment or punishment. The definition as included in Article I CAT is neutral as to the means which are used, meaning that, theoretically, the use of chemical agents could amount to torture provided that all other requirements of torture are met as well. The Committee against Torture has already dealt with chemical agents in the context of torture and inhuman or degrading treatment or punishment, albeit only on a rudimentary level and merely in a law enforcement context. In 2000, the Committee against Torture voiced concern over Canada having used pepper spray disproportionately as a means of riot control. However, whether the use of chemical agents can potentially be torture is not necessarily the question. The actual question is whether the use of chemical weapons as a form of collective punishment would fall within the definition of torture under the CAT.

When determining whether an act amounts to torture, it is important to note that some of the mandatory requirements are more easily determined than others. Regarding the first criterion (severity of pain or suffering) it is important to note that there is a general understanding that in many instances the use of chemical weapons causes severe pain and suffering. When considering reports of instances in which chemical weapons have been used in Syria and the resulting physical and mental effects, especially in the case of children, the determination can easily be made that many of these chemical attacks caused severe pain and suffering and therefore reached the threshold of severity as required by Article I CAT. Similarly, the intentionality of these chemical weapons attacks on civilians can also be clearly evidenced when looking at different investigations conducted by – most prominently – the OPCW. The reports of these investigations clearly indicate that there is a negligible possibility that the release of these chemical agents was not intentional. The nature of the attacks and the methods used to deliver these chemical agents clearly indicate that their release was planned and deliberate. While not all the uses of chemical weapons in the Syrian civil war were conducted by government forces, there are good indications that at least a significant amount of them were. Therefore, not all chemical weapons attacks would fall within the definition of torture of the CAT, at least those that were conducted by government forces would clearly be included.

The main issue that needs to be resolved is to determine if chemical weapons use in Syria should be considered as degrading or inhuman treatment or as punishment or torture, and whether the acts were conducted with a purpose that would be similar to those mentioned in Article 1 CAT. When looking at the application submitted by Canada and the Netherlands, what they refer to is that these chemical attacks took place as a form of punishment of the civilian population. While it needs to be determined whether this was actually the case, there does appear to be some indication that this might be the case in at least some of the chemical weapons attacks. For the question of whether these attacks can be considered as torture it must however be determined whether this form of punishment would even fall within the definition of torture. Article 1 CAT does mention that one of the potential specific purposes can be the punishment of individuals for crimes that they or third persons have committed. This could potentially include the concept of collective punishment. This question, however, has not been explicitly discussed in the context of any of the mechanisms that seek to address violations of the CAT, nor has it truly been discussed within the literature. As the other requirements have been met, it could be argued that the current situation could at least be classified as inhuman or degrading treatment and this in itself is already a violation of the CAT.

Another Approach to Address Chemical Attacks?

While the issue of chemical weapons use as a potential violation of the CAT has not been brought up directly in the application of Canada and the Netherlands, the press release however does seem to indicate that at least some individuals at the ICJ Information Department are of the opinion that this might be an important aspect of the Syrian case. Without the direct possibility of having international adjudication of the use of chemical weapons in Syria directly within any other context, it might be an opportunity to use the CAT to address the situation in Syria. Such an approach would also potentially open up a more general opportunity of addressing chemical weapons from a human rights perspective rather than restricting it to either an arms control or humanitarian law perspective, broadening the scope of protection offered and strengthening the taboo against chemical weapons.

In this context, it is important to clarify not only the legal but also the political ramifications in case the ICJ holds Syria accountable for having violated the CAT. First and foremost, a declaratory judgment that would primarily emphasize that Syria has violated yet another norm of international law would increase political pressure on the Syrian government but also its allies. However, the ICJ could also go beyond a declaratory judgment and require Syria to provide compensation to the victims of chemical weapons use. Such forms of compensation might include financial but also non-financial reparations, such as formal (and public) apologies to the victims. Alas, judgments by the ICJ are not enforceable as such, as there is no “world police force”. But the political signalling in the case the ICJ holds Syria accountable for the use of chemical weapons against the civilian population would be very strong and exert further pressure on the Assad regime.

Elisabeth Hoffberger-Pippan

Elisabeth Hoffberger-Pippan

Dr. Elisabeth Hoffberger-Pippan ist wis­sen­schaft­lich­e Mit­ar­bei­ter­in am Programmbereich „Internationale Sicherheit“ und im Pro­jekt CBWNet. Sie forscht zu Fra­gen der Ve­ri­fi­ka­tion und Ein­hal­tung von Ver­bots­nor­men in Bezug auf biologische und chemische Waffen sowie zur Rolle von Künstlicher Intelligenz im militärischen Bereich. // Dr Elisabeth Hoffberger-Pippan is a Senior Researcher at the research department “International Security” and in the CBWNet project. She conducts research on issues of verification and compliance with prohibition norms related to biological and chemical weapons on the role of artificial intelligence in the military domain. | Twitter: @EHoffbergerP
Barry de Vries

Barry de Vries

Barry de Vries ist wissenschaftlicher Mitarbeiter am Lehrstuhl Öffentliches Recht und Internationales Recht an der Justus-Liebig Universität Gießen und assoziierter Forscher im Programmbereich „Internationale Institutionen“ am PRIF. // Barry de Vries is Research Associate at the Chair of Public Law and International Law at the Justus Liebig University Giessen and Associate Fellow at PRIF's Research Department “International Institutions”.

Elisabeth Hoffberger-Pippan

Dr. Elisabeth Hoffberger-Pippan ist wis­sen­schaft­lich­e Mit­ar­bei­ter­in am Programmbereich „Internationale Sicherheit“ und im Pro­jekt CBWNet. Sie forscht zu Fra­gen der Ve­ri­fi­ka­tion und Ein­hal­tung von Ver­bots­nor­men in Bezug auf biologische und chemische Waffen sowie zur Rolle von Künstlicher Intelligenz im militärischen Bereich. // Dr Elisabeth Hoffberger-Pippan is a Senior Researcher at the research department “International Security” and in the CBWNet project. She conducts research on issues of verification and compliance with prohibition norms related to biological and chemical weapons on the role of artificial intelligence in the military domain. | Twitter: @EHoffbergerP

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