Determining and Applying International Humanitarian Law to the War in Syria

Destruction in Syria

The Civil War in Syria began in the spring of 2011 when the Ba’athist government led by Bashir Al-Assad responded violently to protests that erupted in different cities across Syria. These protests, fueled by a partial crop failure and the revolutionary winds of the Arab Spring, soon turned from non-violent opposition to armed resistance movements. Over the past four years hundreds of thousands of Syrian civilians have been killed and a lost generation of young children are living their lives in refugee camps around the region. Several cities – with value recognized as belong to the common heritage of all humanity sites – now lay in ruin. The war has helped to create the conditions that gave rise to the Islamic State which invaded neighboring Iraq and has openly and flagrantly committed all manner of international crimes. The tragedy of Syria provides fertile ground for those concerned with International Humanitarian Law (IHL) and the development of International Criminal Law to understand the applicable legal regimes and the potential modes of liability for participating states as well as the individuals personally responsible.

To ascertain the applicable legal standards regarding the war in Syria one must first ask a fundamental question. For the purposes of this comment I will assume that there is little disagreement that there is currently an armed conflict in Syria. Therefore, the first question is which of the three types of armed conflict provides the applicable IHL regime in Syira? For review, those categories are international armed conflict, non-international armed conflict, and the emerging field of internationalized armed conflict. International armed conflict is defined in Common Article 2 of the Geneva Conventions of 1949. It states in part, “all cases of declared war or of any armed conflict that may arise between two or more high contracting parties, even if the state of war is not recognized, the convention shall also apply to all cases of partial or total occupation of the territory of a high contracting party even if the said occupation meets with no armed resistance.” Therefore, an armed conflict clearly between the legal and recognized armed forces of two different states or when one state occupies another state, the law of international armed conflict applies. Examples of such cases are the Korean War between the armies of North and South Korea and the Israeli occupation of Palestine, or Moroccan occupation of Western Sahara.

Common Article 3 of the Geneva Convention defines non-international armed conflicts as, “armed conflicts that are non-international in nature occurring in one of the High contracting parties.” Frankly, this is not entirely helpful. In its simplest form non-international armed conflicts must be between a standing army on one side and a nongovernmental actor on the other that takes place within a particular state. The conflict must, however, manifest itself in the form of actual armed conflict, what most would plainly call a ‘war.’ Common Article 3 is not applicable to internal unrest such as riots or other acts of violence that are either too isolated and/or sporadic to be considered sustained conflict. Giving more guidance than the plain text of Additional Protocol II to the Geneva Conventions, the ICRC has stated that a situation is a non-international armed conflict when; 1) the hostilities have reached a certain minimum level of intensity such that the governmental response necessitates military and not just police action; and 2) non-governmental groups involved in the conflict must be considered as “parties to the conflict,” meaning that they possess organized armed forces.[1] This means, for example, that these forces have to be under a certain command structure and have the capacity to sustain military operations.

The third kind of armed conflict recognized by international humanitarian law is a newly recognized form known as ‘an internationalized armed conflict.’ An otherwise non-international armed conflict may become internationalized if: a) the state subject to an insurrection recognizes the insurgents as belligerents; b) one or more foreign States come to the aid of one of the parties with their own armed forces or; c) two foreign States intervene with their respective armed forces, each in aid of a different party.[2] The most visible example of an internationalized armed conflict was the conflict in the Democratic Republic of Congo in 1998 when the forces from Rwanda, Angola, Zimbabwe and Uganda intervened to support various groups in the DRC,[3] and arguably the war in Indochina with both the United States and the Soviet Union providing a certain amount of military personnel and equipment. This newly recognized, and sometimes critiqued, field of armed conflict in IHL presents serious problems if applied. Unlike both international and non-international armed conflict, internationalized conflicts are not clearly subject to one or the other applicable provisions and protocols of the Geneva Conventions, unless one simply applies the principles of Common Article 2 and Additional Protocol I.

When turning to Syria another question presents itself. Since several international states and non-state actors are openly involved not only in the direct fighting, but in directly supporting various forces, what level of such involvement is enough to trigger the enhanced obligations and protections of International Armed Conflict? In Nicaragua the International Court of Justice found that a foreign State is responsible for the conduct of a faction in a civil war if: a) the faction is a de facto agent of the foreign State; or b) the foreign State otherwise orders it to commit certain acts – the “effective control” test.[4] The ICTY used a different gauge when finding individual criminal culpability through superior responsibility of a leader or military commander – the “total control” test. This is a more stringent standard used in International Criminal Law to determine personal responsibility. The less stringent effective control test for states affirmed in Nicaragua was affirmed when the ICJ found that Serbia had not had total control over Bosnian Serb forces in Bosnia.[5]

Taking into account those complexities and the multiple-sided proxy war aspect of the Syrian conflict, combined with the still unclear boundaries of internationalized armed conflict, it makes sense to view the Syrian civil war as an internal armed conflict, but with a reservation that, given the high degree of international cooperation and support for various belligerents and the government, it behooves one to review closely how involved outside actors are and whether it may rise to the level of making on-the-ground actors de facto agents.[6] Still, there is at least one standing army as a party to the conflict, the Syrian military. Opposed to it are two broad umbrella groups (the FSA and Jihadis) though the reality on the ground is that there are more likely several dozen different groups, sometimes in tenuous alliances, and others in open conflict with each other along with aggression against the Syrian military. Therefore it satisfies the two criteria set forth by the ICRC for internal armed conflict. The hostilities have certainly reached level of intensity such that the governmental response is military and not just police action; in fact, it is nearing its fourth year of bloody fighting. Additionally, those various groups fighting each other and the Assad military are, to a greater or lesser degree, organized armed forces capable of sustaining armed conflict with the state military for years.

Characterizing a conflict as an internal armed struggle means that only the very basic protections of Common Article 3 and the Additional Protocol II apply (if the state is a party). Additionally the conventions only mention criminal liability for violations committed in international armed conflicts. However, the ICTR, ICTY and Rome Statutes of the ICC have changed that, finding that customary international law can be interpreted to bridge the gap and apply ICL liability to internal armed conflict. This jurisprudence compliments Common Article 3 and the Additional Protocol II for criminal liability for serious crimes in internal conflicts. Keeping this in mind, all sides, even state actors, nearly all actors are potentially liable for the war crimes that have been widely reported to have been committed during the war. In the shamefully unlikely chance that either Syria signs the Rome Statute and refers itself to ICC jurisdiction under Article 12(3) or the UNSC proposes – much less approves- the creation of an ICTY-style tribunal the ability of the international legal community to intervene in the conflict or adjudicate responsibility and/or liability is seriously inhibited.

“Operation Inherent Resolve” Airstrikes in Syria – Collective Self-Defense or Mission Creep?

Libyan Vehicle Still Burning After Bombing

Chapter VII, Article 51 of the UN charter states, “Nothing in the present Charter shall impair the inherent right of individual or collective self-defense if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security.” The US-led international response to Iraq’s call for assistance in fighting ISIL complies with the provisions of Article 51. Iraq informed the Security Council of its request for assistance in its defense against internal belligerents and it has given express consent for such actions.[7] Serious questions arise regarding the applicability of Article 51 against non-state actors. The U.S. argues that there is sufficient state practice since 9/11, their own mostly, to justify claims of self-defense against non-state actors. However, post 9/11 decisions by the ICJ in Wall[8] and Congo v. Uganda[9] suggest just the opposite. In any case, customary international law permits a state to intervene on behalf of another state by another state, including the use of force, to restore law and order within the consenting state’s borders. Therefore the Iraqi government’s express consent removes any doubt as to the legality of action within the territory of Iraq.[10]

The real question then is the legality of similar strikes against ISIL in Syria. The United States has conducted strikes on both ISIL and another “al-Qaida-affiliated” terrorist organization known as the Khorasan Group targets inside Syria.[11] It is important to note that not all of the coalition partners currently engaged in Iraq are doing the same in Syria, notably the U.K. – a staunch U.S. ally.[12] Without a specific Security Council resolution – something unreasonably difficult given the fact that China and Russia are Syrian government allies whereas the Western countries support the “FSA” opposition and it is unclear how much, if any, “official” support is given to Islamist forces in Syria – though it is not unreasonable to assume some Gulf state support is being given, unless either Syria consents to the strikes against Islamist forces or they are undertaken in the guise of collective self-defense of Iraq, the legality of such strikes is questionable.

Syria has not consented to the strikes in its territory and has gone so far as to say it will consider any such strikes as violations of international law.[13] However, what one says and what one does may be entirely different. Coalition forces conducting strikes inside Syria routinely notify the government of the impending strike and none have yet been stopped. This appears to imply some kind of implicit consent, which is not surprising given that ISIL is one of the more tenacious enemies of the regime.[14] Implicit consent is not the kind the UN Charter contemplates or that the UNSC would likely consider legitimate, a position the Russian Foreign Ministry has argued.[15]

Without consent, we must return to the issue of self-defense. The United States spelled out its position in a letter to the U.N. Secretary General that it considers strikes in Syria against ISIL as part of its collective self-defense of Iraq pursuant to its request and consent and UNSC resolutions.[16] Its attacks against the Khorasan group appear to be justified by individual self-defense as a direct threat to the United States. This later justification is fairly dubious because in order to claim individual self-defense the state claiming the right must have been the victim of an armed attack per Chapter VII. While ISIL has attacked Iraq’s military and cities specifically, it has not done so against the U.S. Likewise, the Khorasan group has not conducted any armed attacked against the U.S. itself. However, if they are “affiliated” with Al-Qaeda they are considered by the U.S. as having conducted an attack on the U.S. on September 11th, and so they are fair game under the right of self-defense. The diminished nature of Al-Qaeda’s operational capacity raises serious doubts that a clear connection between Al-Qaeda and the Khorasan can be made, certainly nothing akin to either effective or total control. The Khorasan’s do not likely have the capability to conduct an attack on the U.S. with any imminence, which is the basis of individual self-defense.[17]

The question of whether the cross broader strikes against ISIL in Syria are justified based on the collective self-defense of Iraq, which is genuinely recognized as legal, remains open. The real issue is one’s position regarding the breadth and depth of Article 51. Only a broad reading of Article 51, one that includes non-state actors and cross-border attacks on potential threats of a state that has been the victim of an armed attacked, could justify U.S. strikes in Syria. But such a reading is plainly contrary to the object and purpose of Article 51. The notions of self-help, self-defense and collective self-defense are ones of customary law, established with all the applicable notions and protections of sovereignty. Despite the claims of ISIL to have eliminated the border between Iraq and Syria,[18] Iraq cannot do so. In defending itself against ISIL, Iraq, and anyone defending it against ISIL attacks can legally do so up to the border with Syria. To go further than the border of Iraq is, at least from a textual and customary reading of Article 51, a violation of international law. It is an added irony that the attacks themselves are, in fact, supporting the Syrian government in its fight against non-ISIL forces, thereby giving it aid and allowing it to shift forces against western-backed rebels. The intricacies of international relations sometimes defy what would otherwise appear to be reasonable strategy.

Applicability of the Responsibility to Protect in Syria – “Illegal, but Legitimate”

Children Killed In Sarin Attack

The doctrine of Responsibility to Protect (R2P), as stipulated in the Outcome Document of the 2005 United Nations World Summit[19] and formulated in the Secretary-General’s 2009 Report on Implementing the Responsibility to Protect[20] is as follows:

  1. The State carries the primary responsibility for protecting populations from genocide, war crimes, crimes against humanity and ethnic cleansing, and their incitement;
  2. The international community has a responsibility to encourage and assist States in fulfilling this responsibility;
  3. The international community has a responsibility to use appropriate diplomatic, humanitarian and other means to protect populations from these crimes. If a State is manifestly failing to protect its populations, the international community must be prepared to take collective action to protect populations, in accordance with the Charter of the United Nations.

There has been ample evidence that war crimes and crimes against humanity have been committed by all sides in the Syrian conflict. ISIL is known for its brutal treatment of prisoners and its callous disregard for human life, the FSA has chopped off the fingers of “spies” and the government has used barrel bombs and other weapons against civilian centers.[21] In 2013 a Sarin gas attack in the suburbs of Damascus caused international outrage and appeared to move the international community in the direction of asserting the obligation to intervene under R2P.[22] However, that intervention, at least in the form of air and missile strikes against the regime proposed by the U.S., was rejected by Russia and China. They cited the case of Libya as an example of how the principles of R2P, though laudable, can be easily abused to give a green light to regime change. Such actions are contrary to the customary principle of non-intervention and sovereignty itself.[23]

In general, the humanitarian situation and the crimes against the people of Syria by all sides appears to invoke the principle of R2P as a classic matter. There are crimes being committed, the international community has responsibility to help protect the people of Syria, and the government has either been complicit in or unable to prevent continuing violence and possible crimes. Therefore, the argument goes, the situation demands that the international community respond. While the response will likely not be military, given the concerns of mission creep, other methods may be put in place. Some of these include but are not limited to:

  • UNSC could issue resolutions compelling all sides to a cease-fire and negotiation.
  • The UNSC could authorize a peacekeeping mission to facilitate negotiations.
  • The UNSC could establish a cadre of foreign monitors to ensure that no crimes are being committed, and if they are that they are reported to the UNSC and international legal bodies for prosecution.
  • The UNSC could establish universal arms embargoes.
  • The UNSC could establish economic sanctions on Syria and anyone who supports any of the actors fighting.

In all honesty, all of these solutions sound like positive steps in resolving the conflict, if one knows nothing of both the conflict itself but also the history and relationship of the Permanent Five Members of the UNSC. Since the Syrian conflict is essentially a proxy war between the United States, some Gulf States, and Russia (and to a lesser degree China) it is reminiscent of Cold War era conflicts. It is why there has been little action (despite the removal of chemical weapons after the Sarin attack, which is positive indeed) at the UNSC regarding Syria. As a proxy war, there is no reason to believe that any of these potentially positive suggestions are either possible or effective given the length of time the war has been allowed to continue and the resulting destruction of property, human lives and (in many ways) the moral fabric of what is left of Syrian society. That aside, if possible, the most effective program may be a simple arms embargo. Weapons and ammunition do not last forever, can be destroyed, and the fighting could literally peter out. If that happened it could open the door to an influx of humanitarian work and pave the way for other conflict resolution actions such as providing safe corridors for refugees, establishing neutral areas or even setting up formal peace negotiations. Again, given that fact that Syria is a proxy war between great powers, these proposals, though workable as reasonable solutions in the abstract, are unlikely to be seriously considered. Each side feels it has too much to lose and, frankly, it is just not bad enough, or they just do not care enough, to risk the potential fallout on the grand international game.

Still for many, military intervention may indeed be the only recourse possible to stop the war. However, one cannot ignore the very recent history of R2P and its distortion in Libya. The transition of a UNSC authorized R2P intervention to protect civilians in Benghazi turned very quickly into a robust air campaign aimed at regime change from the above. Given the position of the U.S. (“Assad Must Go”) there is every reason to believe that any invocation of R2P in Syria would likewise lead to regime change. Though that result may be understandably sought, it is not the goal of R2P. It therefore stands as a barrier to its legitimate use. Unlike Libya, the Syrian proxy war makes the prospect of mission creep to regime change even that much more serious and dangerous.

A more grim danger lies in the fact that Turkey is a NATO member and NATO has its own version of R2P. In the Report of the International Commission on Intervention and State Sovereignty on Responsibility to Protect (2001), the Commission considers the situation in which “the Security Council rejects a proposal or fails to deal with it in a reasonable time.” In that case, the Report authorizes “action within area of jurisdiction by regional or sub-regional organizations under Chapter VIII of the Charter, subject to their seeking subsequent authorization from the Security Council.” Since we can assume the UNSC will not be acting on Syria in the near future, it appears to authorize action by NATO. Since Turkey borders Syria, NATO can reasonably claim that the conflict is in its “area of jurisdiction” and bring to bear all of its assets, assets which are considerable indeed. This divergence between the UN and NATO applications of R2P leaves open the possibility of unilateral action by NATO that would likely result in a similarly odd conclusion of that the Independent Commission on Kosovo regarding the NATO air campaign: “Illegal, but legitimate.”[24]

Conclusion

An internal armed conflict rages in Syria today, one that has cost the lives of hundreds of thousands and homes of millions more and appears likely to continue for the foreseeable future. It touches every failed component of modern international relations. The UNSC, the institution tasked with ensuring international peace and security is run by those who have some of worst records of abuse, but by the nature of their victory, through war crimes gone unprosecuted, in a war that cost millions lives and the destruction of many countries, and therefore completely unable to do fulfill their obligations. The closest the UNSc has come to doing so was in Libya, but the temptation to fall back on old models of neo-imperial control rose to the fore, and ruined what opportunity was provided.

The wanton violations of all manner of international law by all actors involved, including the U.S., Gulf States, and Russia, make the possibility of any legitimacy of international action in Syria nearly hopeless. There will be no international U.N. mission in Syria if things remain as they currently are. There will be no trials of international criminals even may even make Mladic cringe, the UNSC has their self-diagnosed “tribunal fatigue,” and the ICC is left with no party referring the matter, little to no action by the prosecutor (the telling signs of unfortunate political influence – the very thing it was intended to avoid) and the local courts, if any legitimate courts remain outside Damascus, are wholly unable and certainly unwilling to do anything even if they had the power to do so. Money, arms, and fighters are flocking to the war, some for adventure and danger, and others from a feeling of a mandate by a religious or moral obligation. Those who fight in the hell of war never leave unscathed. All actors from the state to the individual are behaving contrary to a very basic moral truth: do as little harm as possible.

Despite this, not all hope is lost. One benefit of the underlying principle of sovereignty of states, means that those who control the state have a large influence in the international arena. Those who are compelled by a religious or moral obligation to fight violence and war must first change their governments. We need new representatives of the powerful states, ones who will not make excuses or put up barriers. Instead, the powerful nations, the P5 and the G8, can use their power to end the neo-colonial exploitation and fully enforce the laudable principles enshrined in nearly every Human Rights convention and document. This will not happen unless those in areas outside of hot conflicts can overcome their myopic vision of the world and recognize their ability to fundamentally alter and enhance the lives of millions, if not billions of our fellow humans.

With the right kind of decision makers at the U.N., and most importantly at the UNSC, a large coalition force could amass in the Mediterranean and on the Turkish border to threaten all sides fighting in Syria. A call for an armistice could be made, and if fulfilled, the UNSC could authorize several types and modes of missions that could facilitate peace talks and rebuilding, as well as resettlement and economic relief. If the sides refused, a large invasion (one of such size that those in Syria would know it would be impossible to repel) could be undertaken that demanded, and ensured, full compatibility with applicable law. Syria could sign and ratify the Rome Statute or the UNSC could create a tribunal for the conflict. All parties could participate and the Tribunal could be, and would need to be, well funded and staffed. There could be trials and the rebuilding of a new nation after years of war. This will not happen, though, if the status quo remains and those in the powerful nations stay complacent. In a real sense, the mechanisms exist in international law to combat and overcome these challenges, but without change at the state level in Russia, the U.S. and China, the status quo will continue in perpetuity. Those who allow that to happen are morally complicit in the crimes that happen in Syria and around the world.

[1] International Committee of the Red Cross, How is the Term “Armed Conflict” Defined in International Humanitarian Law? https://www.icrc.org/eng/assets/files/other/opinion-paper-armed-conflict.pdf, 2008

[2] Gasser, Internationalized non-International Armed Conflicts: Case studies of Afghanistan, Kampuchea, and Lebanon, 31 AM. U.L. Rev. 809 (1982)

[3] Williams, Explaining the Great War in Africa: How Conflict in the Congo Became a Continental Crisis, The Fletcher Forum of World Affairs, Vol. 37:2 Summer 2013

[4] Case Concerning the Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v. united States of America), 1986 I.C.J. 14, 27 June 1986

[5] Prosecutor v. Dusko Tadic (Appeal Judgment), IT-94-1-A, International Criminal Tribunal for the former Yugoslavia (ICTY), 15 July 1999, available at: http://www.refworld.org/docid/40277f504.html %5Baccessed 7 May 2015]

[6] BBC News, Syria Crisis: Where Key Countries Stand, http://www.bbc.com/news/world-middle-east-23849587 (Accessed May 7, 2015)

[7] Letter dated 20 September 2014 from the Permanent Representative of Iraq to the United Nations addressed to the President of the Security Council, U.N. Doc. S/2014/691, (Sept. 22, 2014).

[8] Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, available at: http://www.refworld.org/docid/414ad9a719.html %5Baccessed 7 May 2015]

[9] Advisory Opinion Concerning Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, International Court of Justice (ICJ), 9 July 2004, available at: http://www.refworld.org/docid/414ad9a719.html %5Baccessed 7 May 2015]

[10] Arimatsu and Schmitt, Attacking “Islamic State” and the Kohorasan group: Surveying the International Law Landscape, 2 COLUM. J. Transnat’l l. Bulletin 53, 2014

[11] U.S. Department of Defense, Operation Inherent Resolve, http://www.defense.gov/home/features/2014/0814_iraq/ (Accessed May 7, 2015)

[12] Nicholas Watt and Nick Hopkins, “Cameron forced to rule out British attack on Syria after MPs reject motion” The Guardian, (29 August 2013) http://www.theguardian.com/world/2013/aug/29/cameron-british-attack-syria-mps (Accessed May 5, 2015)

[13] Ian Black & Dan Roberts, “Isis Air Strikes: Obama’s Plan Condemned by Syria, Russia and Iran”, The Guardian, (Sept. 12, 2014), http://www.theguardian.com/world/2014/sep/11/assad-moscow-tehran-condemn-obama-isis-air-strike-plan.

[14] Cheryl Pellerin, DoD Official: Successful Syrian Strikes Only the Beginning, U.S. DoD News: (Sept. 23, 2014), http://www.defense.gov/news/newsarticle.aspx?id=123241 (quoting Lieutenant General William Mayville);Rear Adm. John Kirby & Lt. Gen. William Mayville, Dep’t of Defense Press Briefing(Sept. 23, 2014), available ahttp://www.defense.gov/Transcripts/Transcript.aspx?TranscriptID=5505[hereinafter DOD Press Briefing]

[15] Gabriela Baczynska and Katya Golubkova, “Russia: airstrikes must be agreed with Syria or will fuel tension,” Reuters (Sept 23, 2014), http://www.reuters.com/article/2014/09/23/us-syria-crisis-airstrikes-russia-idUSKCN0HI0OU20140923

[16] Michelle Nichols, “Exclusive: United States defends Syria in Letter to U.N. Chief. (September 23, 2014) Reuter, http://www.reuters.com/article/2014/09/23/us-syria-crisis-un-usa-exclusive-idUSKCN0HI22120140923

[17] On the distinction between IS, al-Nusra and the Khorasan Group, see Holly Yan, What’s the Difference between ISIS, al-Nusra, and the Khorasan Group?, CNN (Sept. 24, 2014, 3:01 PM), http://edition.cnn.com/2014/09/24/world/meast/isis-al-nusra-khorasan-difference/

[18] Al-Monitor, “ISIS Erases Iraq-Syria border,” (June, 11, 2014)

[19] (A/RES/60/1, para. 138-140)

[20] (A/63/677)

[21] A review of many crimes can be found at http://syrianfight.com/

[22] UN General Assembly, Report of the United Nations Mission to Investigate Allegations of the Use of Chemical Weapons in the Syrian Arab Republic on the alleged use of chemical weapons in the Ghouta area of Damascus on 21 August 2013 : note / by the Secretary-General, 13 September 2013, A/67/997-S/2013/553, available at: http://www.refworld.org/docid/53abe7bf4.html %5Baccessed 7 May 2015]

[23] BBC News, “Syria Crisis: Russia and China step up warning over strike,” (August 27, 2013) http://www.bbc.com/news/world-us-canada-23845800

[24] Independent International Commission on Kosovo: The Kosovo Report: http://reliefweb.int/sites/reliefweb.int/files/resources/6D26FF88119644CFC1256989005CD392-thekosovoreport.pdf

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