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The “Civil War” in Syria and International Law |
6 August 2012by Ýbrahim Kaya, USAK
A state of civil war in the full meaning of the words now prevails in Syria. Rule over some sections of the country has now passed out of the control of the state. Various local forces now prevail in certain sections of the country, notably the Syrian National Council. Fierce clashes between government forces and those of the state are now under way.
When it comes to ascertaining which particular provisions of international law apply to the crisis in Syria, it is of key importance that on 16 July 2012, the International Committee of the Red Cross described the conflict as “armed conflict of a non-international nature” , i.e. what is otherwise known as civil war. Although both the United Nations (UN) and the Assad government have previously used the expression “conflict” and “war” the description by the Red Cross organisation will carry much more weight. For the Red Cross is the organisation which has been instrumental in drawing attention to the rules for the law of war and it is also obliged to monitor and document breaches of these rules and draw public attention to them, i.e. in a sense it is charged with following them up.
The Red Cross had previously only used this expression for areas where conflict was taking place such as Idlib, Humus, and Hama. The nature of the overall conflict had not been spelt out. However the expression “civil war” is now clearly valid for the whole country. As a result, everywhere that the forces loyal to al-Assad clash with their opponents is now an area where the rules International Humanitarian Law ( IHL) apply. Three conditions have to be observed in conflicts where IHL applies: duration, intensity, and organisation. As far as the duration is concerned, there can be no doubt that the conflict in Syria is not confined to one or two incidents and that it has been of a continuous nature for a long time. The Independent International Syrian Investigation Committee set up by the United Nations Human Rights Council ruled in February that the situation inside Syria was on the brink of war and that in terms of the intensity, the conflict had reached a level which might be described as civil war, but stated that the necessary level of ‘organisation’ did not exist. However heavy weaponry was being used in the clashes and this demonstrated the intensity. The Red Cross’s description of the War as a civil war and the fact that the forces in conflict with al Assad describe themselves as opposition in respect of their organisation and this surely demonstrates that they have reached a level as an organisation where they can be regarded as a side. Consequently all the conditions are now fulfilled for the application of the rules of IHL.
There are three areas of application of the rules of IHL in civil wars. There are i. the joint Third Article of the Geneva Convention of 1949; ii. Protocol II of 1977 and iii. the customary rules of international law. It should be made clear at the outset that Syria is not a party to Protocol II of 1977 and so its enforcement is not possible in this case. The Joint Third Article may be summarized as creating to treat individuals humanely in all circumstances when they cannot take part in the conflict for such reasons as having surrendered, being ill, being wounded, and having been caught and thus it forbids actions and executions contrary to human dignity, in particular murder, inhuman treatment, torture, and the taking of hostages. Similar provisions exist in customary international law. In addition, customary law creates obligations to distinguish between combatants and non-combatants, i.e. not to target civilians and to use only proportional force.
A point has now been arrived at where the Syrian authorities can no longer use labels like rebel and terrorist as pretexts for employing torture or liquidating people. Those carrying out the armed struggle against the Syrian government are persons with recognized rights under international law. It should also be made clear that the obligations arising from international law apply not only to the Syrian authorities but also to their opponents. Non-state actors such as the Free Syrian Army and other armed organisations are parties to a war and must conform to the obligations of international law.
Violations of the obligations of international law could raise the question of war crimes. Infringement of the Joint Third Article could create individual criminal responsibility. Syria is not a party to the International Criminal Court (ICC) set up in 1988 by the Statute of Rome but despite this, the United Nations Security Council has the power to send those who violate the laws of war to the ICC. An alternative judicial option would be to set up a separate international tribunal for Syria. Following regime change, it is also possible that a court could be established for such prosecutions in Syria itself.
It also needs to be made clear that, as the International Court of Justice has stated under international law, not just the particular provisions of the ICC but also the law on human rights must also continue to be enforced during a conflict. The most important of these are the right to life, personal security, the prohibition on torture, and the right to a fair trial.
So the Red Cross’s use of the term ‘civil war’ and the fact that it consequentially finds this to be an area in which the rules of international humanitarian law apply suggests clearly that the Syrian authorities and their soldiers could be criminally responsible. When a regime which is losing its support base takes account of the prospect that one day violations of international humanitarian law might be brought against these people, this may result sooner or later in a serious loss of support. There is another important consequence emerging from this. The opposition was accepted as a political interlocutor a good while back. Now, albeit in a limited fashion the opposition has also been accepted in legal terms as a party and this may assist the fall of the existing regime.
However much traditional international law may state that in a civil war, outside states are to remain neutral, what has happened in practice both historically and under current circumstances does not accord with this. Other countries and in particular neighbouring states can support the parties, directly or indirectly, line with their own policies. In particular, in cases where infringements of human rights rise to massive and grave levels, external support for the parties is treated with understanding. There are even those who argue that external intervention is necessary because of an ‘obligation to protect.’ When there is a likelihood of states experiencing civil war either being broken up or having their borders changed, then the chances grow of military intervention by other countries. |
6 August 2012
Journal of Turkish Weekly
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