OVERHAULING INTERNATIONAL HUMANITARIAN LAW
Following World War Two, there was a distinct shift in the nature of conflict. In 1946, there were two “international armed conflicts” versus eight “non-international armed conflicts.” By the turn of the century, there were seven “international armed conflicts” versus thirty-four “non-international armed conflicts.” The greatest jump in “non-international armed conflicts,” immediately followed the fall of the Soviet Union, when Communist blocs across Eastern Europe and Central Asia fractured along internal political and ethnic divides. Most of these conflicts were waged over which faction would gain political control in these newly established, independent states. This defining characteristic separated these intrastate conflicts from international conflicts, and blurred the applicability of international humanitarian law. No longer were concepts like “combatants,” “proportionality,” and “jurisdiction” so easily applied. This ambiguity has only increased since the attacks of September 11, 2001, when the United States initiated a global “war on terror.”
The evolution in the nature of conflict carries significant legal implications: How do governments assess threats posed by prolonged civil unrest? What rights and protections are afforded to civilians and combatants, and how is the distinction between the two made? And how does the international community prosecute egregious crimes committed during a conflict? These questions are explored further, using the ongoing war in Syria to illustrate specific examples.
Evolution of a Conflict
The hybrid conflict raging in Syria began with a few non-violent street protests in the town of Dara’a. These protests followed the arrests of several youth who had spoken out against the Assad regime. The police escalated the situation with a violent crackdown, which evoked a stronger response from demonstrators. Until this point, the situation in Syria was entirely a domestic concern, where Syria’s national laws distinguished the lawful from the unlawful. Neither human rights law nor humanitarian law was applicable to this case of civil unrest. However, as the protests spread and intensified over the following months, the conflict transformed from a case of civil unrest to a non-international armed conflict. In this setting, the fighting between the Assad regime – as represented by the state police and other state security apparatuses – and demonstrators was subject to both Syrian national law and human rights law. However, the conflict did not stay localized for long; fighters streamed across the border from Iraq, Turkey, and Lebanon, among others, to join the fight on both sides.
The mobilization of some of these fighters was more coordinated than others. Islamic militants supporting the al-Nusra Front or ISIL were spurred to action by calls from leadership of al-Qaeda in the Arabian Peninsula. Others came from the para-state entity Hezbollah in Lebanon at the assumed encouragement of Iranian leadership. American, Saudi, and Qatari military advisors have also entered the conflict to train moderate opposition forces. However, the documented involvement of these external actors does not automatically categorize the Syrian conflict as an international armed conflict. For this categorization – which carries significant legal implications, including the applicability of international humanitarian law – there must be an official state actor participating directly in the conflict. Instead, Syria may best be described as a hybrid conflict: the government of a state fighting against both internationally-backed local forces and transnational non-state actors. Because of the relative newness of hybrid conflicts, the term’s significance is still being defined. As such, there are no guaranteed protections to any of the actors – a challenge that humanitarian law scholars and practitioners must grapple with when assessing the actions taken by each side in such a conflict.
Terrorism as a Defense
One implication of the “hybrid conflict” category is the ambiguous application of them terms “civilian” and “combatant.” Under international humanitarian law codified in 1977, all efforts must be taken by an army to differentiate and leave-alone civilians versus known enemy combatants. Additionally, those identified as “combatants” must be afforded protections including amnesty for committed acts of lawful warfare, humane treatment when captured, and repatriation at the cessation of conflict. In the Syrian conflict, however, the Assad Regime has avoided the choice between either of these labels, instead identifying any opposition to the regime as “terrorists;” In January 2012, President Assad said he would crush foreign-backed “terrorism” with an iron fist. Assad’s use of “terrorism” capitalizes on the broad and emotive language used routinely by US President George W. Bush as the United States launched its military campaign against terrorism.
By normative standards, “counter-terrorism” is a largely defensible response when the perceived threat contributes to global insecurity. But in the Syrian case, the question must be asked if moderate anti-regime forces pose the same threat to global security as non-state actors like al-Qaeda that were targeted by the United States following September 11? This will be a question which the International Criminal Court will address when it takes up the pending case against al-Assad. Regardless of the Court’s answer, though, it is clear that the Assad Regime has strategically chosen to identify any state opposition as “terrorists” since the term gives the government more leeway in bypassing certain legal principles – specifically those of distinction and humane treatment – enumerated in international humanitarian law.
Prosecuting War Crimes
Mirroring the three phases of a conflict’s escalation – civil unrest, non-international armed conflicts, and international armed conflicts – there are three overlapping jurisdictions for judicial entities: National, Transnational, and International. In situations like the 2010 street protests that marked the genesis of the Syrian conflict, a Syrian court of law would have had sole jurisdiction over the conflict. The situation was a wholly domestic one, and only Syrian national laws applied. (At the time, there were no documented cases of foreign citizens from abroad being arrested; otherwise, the national laws of these individuals’ home countries would also have been relevant and an agreement between Syrian and the other state would have been required to proceed in trying the individual.) However, as the conflict evolved, fighters from various countries – both neighboring Syria and far away – joined. This complicated jurisdictional matters since the cooperation and agreement between all states involved would have had to be arranged. Because the punishments for transnational crimes are not codified in any one state’s national laws, states must work together – either agreeing to a trial in the state where the crime happened, or extraditing the individual back to her home state. In a situation like Syria, such agreement is unlikely where most governments have broken diplomatic ties with the Assad Regime.
The final avenue of prosecution for crimes committed during war is the International Criminal Court. This court is responsible for trying cases where the crime of genocide, war crimes, crimes against humanity, and the crime of aggression are alleged. Here again punishments are undefined, although a thorough taxonomy of crimes has been built over the years since the first war tribunal following World War II. One crime, the use of chemical weapons, has been illegal since 1925. In Syria, the Assad Regime was accused of using chemical weapons to kill over 1,400 Syrians – an action that if proven true, violates two fundamental principles of international humanitarian law: Distinction and Limited Suffering. The International Criminal Court may consider this accusation, along with others, if a formal investigation into the Syrian conflict is launched. The United Nations Security Council attempted to refer the conflict to the ICC in June 2014, but the motion was vetoed by the Russian and Chinese delegations.
In conclusion, the evolution of the nature of conflict has complicated the application of international humanitarian law. Hybrid conflicts, such as the one in Syria, blur the lines between non-international and international conflicts, and prevent any sort of automaticity in the application of rights and protections for those involved or at risk. International legal scholars and practitioners need a modified framework by which to assess and investigate possible crimes of war in an era where clearly-defined actors are less common, and where globalized interests – and therefore international involvement – risk further complicating events on the ground.