Briefing Note: Does IHL apply to the humanitarian situation in Syria?
Recently, international bodies and commentators have made several references to international law applicable to the deteriorating situation in Syria. The purpose of this briefing note is to clarify the extent to which IHL — also known as the laws and customs of war and the law of armed conflict — applies (if at all) to the violent situation in Syria between government forces and the armed opposition. While the debate seems open at this stage, the answer to this question may have important implications for the civilian population in Syria in terms of humanitarian assistance, the right not to be arbitrarily deprived of life, and other facets of civilian protection. (This primer does not address the applicability of IHL to the Golan occupied by Israel since 1967.)
What is IHL?
As summarized by the International Committee of the Red Cross, “International humanitarian law is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare.”
IHL regulates two types of armed conflicts: (1) international armed conflicts and (2) non-international armed conflicts. According to the ICRC:
1. International armed conflicts exist whenever there is resort to armed force between two or more States.2. Non-international armed conflicts are protracted armed confrontations occurring between governmental armed forces and the forces of one or more armed groups, or between such groups arising on the territory of a State [party to the Geneva Conventions]. The armed confrontation must reach a minimum level of intensity and the parties involved in the conflict must show a minimum of organisation.
If an armed conflict exists between government forces and armed groups in Syria it would be non-international in character, unless another state sufficiently supports the opposition, which could “internationalize” the conflict. (You can read more about what might “internationalize” a previously non-international armed conflict here.)
How would IHL affect protection of civilians in Syria?
In situations of armed conflict, IHL provides a range of protections for civilians and other persons hors de combat (outside of combat). It establishes a legal framework for the conduct of hostilities between the parties to armed conflict by, for example, prohibiting direct attacks against civilians and civilian objects. Under IHL, an attack directed against a military objective, a combatant, or a civilian directly participating in hostilities — even if it results in incidental civilian death — is not prohibited so long as the attack meets legal criteria under IHL. Those criteria include the prohibition of indiscriminate attacks, proportionality of the anticipated effects of the attack against civilians and civilian objects, precautionary measures to limit harm to civilians, and the prohibition of certain weapons and methods of warfare.
When determining if a specific right has been violated during armed conflict, generally speaking IHL prevails over other legal frameworks, such as international human rights law (IHRL). In particular, according to an advisory opinion of the International Court of Justice, in situations of armed conflict IHL standards prevail over IHRL standards when determining what constitutes an “arbitrary” deprivation of life.
Somewhat paradoxically, compared to IHRL, IHL sets a lower standard of protection for civilians against violence in armed conflict, especially regarding what constitutes an “arbitrary” deprivation of life. Under IHRL, the use of force is generally regulated as a law-enforcement measure. To protect everyone’s inalienable right to life, IHRL requires that the government use the least harmful means (e.g., the lowest level of force) necessary to neutralize an immediate threat to the life of the population or state agents. This standard of protection does not exist in IHL for civilians who directly participate in hostilities — that is, those who contribute sufficiently to the military efforts of an organized armed group. Under IHL, these individuals can be targeted at any time, so long as they continue directly participating in hostilities.
Nonetheless, under IHL humanitarian organizations have solid grounds to engage in relief operations. Common Article 3 of the Geneva Conventions provides that independent and impartial organizations acting on a neutral basis may offer their services to all the parties in order to assist populations affected by the conflict.
What are the sources of IHL governing non-international armed conflict?
As with other fields of public international law, the main sources of IHL applicable to non-international armed conflict include treaties and custom.
Treaties
Two IHL treaty provisions concern the scope of non-international armed conflict. Common Article 3 of the four Geneva Conventions applies "[i]n the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties." Additional Protocol II (AP II) sets a higher threshold of application by applying to armed conflicts "which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol." While the International Court of Justice (among others) has held that Common Article 3 reflects customary law, AP II applies only with respect to states parties. Syria has not become a party to AP II, so if the situation there amounts to a non-international armed conflict, then Common Article 3 and customary IHL would apply.
Custom
There are many fewer treaty provisions expressly applicable to non-international armed conflict than to international armed conflict. Importantly, however, numerous provisions of customary IHL apply during situations of non-international armed conflict. (You can learn more about what constitutes custom through this primer.)
In 2005, the International Committee of the Red Cross published a study on customary IHL. The ICRC identified 161 customary rules of IHL, of which 148 apply in non-international armed conflict.
How can you tell when a non-international armed conflict exists?
State practice, international jurisprudence, and the writing of learned publicists have developed two sets of commonly used cumulative criteria to determine if a situation amounts to a non-international armed conflict to which customary IHL would apply.
Organization of the Parties
First, there must be two or more parties — for example, government forces fighting an organized armed group, or two organized armed groups fighting each other. For IHL to apply, the armed group must meet a certain level of organization. International jurisprudence has developed indicative factors to assess whether the "organization" criterion is established in a non-international armed conflict. As summarized by Jelena Pejic, those factors "include the existence of a command structure and disciplinary rules and mechanisms within the armed group; the existence of headquarters; the ability to procure, transport, and distribute arms; the group’s ability to plan, co-ordinate, and carry out military operations, including troop movements and logistics; its ability to negotiate and conclude agreements such as ceasefire or peace accords; and so forth."
Intensity of the Violence
Second, the intensity of the violence must meet a certain threshold as assessed by the relevant facts on the groups. As developed by international jurisprudence, indicative factors to examine the "intensity" criterion include:
[T]he seriousness of attacks and whether there has been an increase in armed clashes, the spread of clashes over territory and over a period of time, any increase in the number of government forces and mobilisation and the distribution of weapons among both parties to the conflict, as well as whether the conflict has attracted the attention of the United Nations Security Council, and whether any resolutions on the matter have been passed. Trial Chambers have also taken into account in this respect the number of civilians forced to flee from the combat zones; the type of weapons used, in particular the use of heavy weapons, and other military equipment, such as tanks and other heavy vehicles; the blocking or besieging of towns and the heavy shelling of these towns; the extent of and the number of casualties caused by shelling or fighting; the quantity of troops and units deployed; existence and change of front lines between the parties; the occupation of territory, and towns and villages; the deployment of government forces to the crisis area; the closure of roads; cease fire orders and agreements, and the attempt of representatives from international organisations to broker and enforce cease fire agreements.
Have international bodies found that there is a non-international armed conflict in Syria?
The debate on the applicability of IHL to the violent situation in Syria continues apace. In recent weeks, several international entities have taken, or have avoided taking, positions on this issue, including the UN Commission of Inquiry on Syria and the UN Security Council.
Commission of Inquiry
After examining the "organization" of the parties and the "intensity" of the violence criteria, the Independent International Commission of Inquiry on the Syrian Arab Republic did not apply IHL in its February 22, 2012 report: "While the commission is gravely concerned that the violence in certain areas may have reached the requisite level of intensity, it was unable to verify that the Free Syrian Army (FSA), local groups identifying themselves as such or other anti-Government armed groups had reached the necessary level of organization." Nonetheless, the Commission reported that:
Following a further review of its evidence, including information collected since November 2011, the commission is satisfied that a reliable body of evidence exists that, consistent with other verified circumstances, provides reasonable grounds to believe that particular individuals, including commanding officers and officials at the highest levels of Government, bear responsibility for crimes against humanity and other gross human rights violations.
Unlike war crimes, which must have a sufficient nexus to an armed conflict, crimes against humanity may be committed outside of situations of armed conflict.
UN Security Council
For its part, the United Nations Security Council has not expressly applied IHL to the fighting between government forces and armed groups in Syria. Yet the UNSC couched its recent press statement “deploring the rapidly deteriorating humanitarian situation” in Syria in IHL-like terminology. For example, the members of the Council:
call upon the Syrian authorities to allow immediate, full and unimpeded access of humanitarian personnel to all populations in need of assistance, in accordance with international law and guiding principles of humanitarian assistance. They call upon all parties in Syria, in particular the Syrian authorities, to cooperate fully with the United Nations and relevant humanitarian organizations to facilitate the provision of humanitarian assistance and allow evacuation of the wounded from affected areas.
In certain respects, the scope of what this press statement seeks is unclear. While calling for unimpeded humanitarian access in accordance with international law, the Council refers to a concept that pertains to IHL yet the Council does not expressly recognize a state of armed conflict between government forces and members of the armed opposition. In situations short of armed conflict, international law does not provide as strong of grounds to request humanitarian access to the Syrian government, which in principle retains full control as a matter of sovereignty. Indeed, the very Guiding Principles referenced in the press statement express this standard.
In conclusion, the application of IHL to the situation in Syria very much depends on the level of organization of the Syrian opposition engaged in armed hostilities. Applying IHL would provide clear benefits in terms of grounds to negotiate humanitarian access to the population in need. Yet applying IHL would have costs as well, not least in terms of protection of the right to life, which IHL makes contingent on specific conduct-of-hostilities rules. Overall, the qualification of the situation should foremost aim to improve protection of civilians in Syria and not to favor one party over another.
