Ever since IS gained control over Sinjar mountains, a region in north-west Iraq that is dominated by Yazidis in August 14, and the Yazidi minority group have been abducted in hundreds and possibly thousands. Non-Arab, non-Sunni Muslim minority groups in Iraq have been systemically targeted by fighters of the Islamic State (IS) armed group. Yazidi men were killed while others were forced to convert into Islam under threat of death. Yazidi women and young girls have suffered from brutal treatment including rape, sexual violence; being held in captivity as well as incidents of torture and abuses. Girls as young as 12 have been separated from their relatives sold and gifted to IS fighters while others have been forced into marriages. Those held in captivity by IS were held in various locations in Iraq and parts of Syria that are under the control of IS.
Torture, sexual violence, arbitrary deprivation of liberty, taking hostages, forced marriages, rape, forcing persons to act against their religious beliefs constitutes war crimes and crimes against humanity that are both internationally prohibited and punishable. The systemic targeting of Yazidis and other minority groups in Iraq including the Turkmen, Shabak, and Shiite by IS fighters gives rise to hold IS fighters accountable for war crimes and crimes against humanity. The systemic targeting is no longer acts of hostilities conducted in armed conflict, but is clear effort to exterminate non-Sunni minority groups in Iraq and specifically in areas under the control of IS.
IS has exerted great efforts to publicize details about the atrocities they have conducted against soldiers and civilians. Through videos spread on social media in multiple languages, IS fighter instilled fear in anyone that comes in its path. Kurdish Yazidis who lived in Sinjar fled in fear of the crimes IS could commit against Yazidi women and children. In matters of weeks, IS has carried out its plan to cleanse captured areas in northern Iraq from all non-Sunni minority groups forcing these groups to flee.
The International Convention of the Prevention and Punishment of the Crime of Genocide, defines genocide under article 2 as ” acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group”. The systemic attack to exterminate Yazidi sect in Iraq could be easily classified as genocide and not acts of hostilities. IS fighters have committed acts of massive killings, targeting men specifically. The armed group has caused serious bodily and mental harm to both Yazidis men and women. Females and especially young girls suffer from traumas while being held in captivities and after they escape. Their relatives have reported saying “they suffer from panic attacks and can’t leave them unattended”. Some have tried to committing suicide when held in captivity while others have tried to end their lives even after reuniting with their families. The grandfather of a 16-year-old who escaped IS captivity after having been raped reported to Amnesty International describing his granddaughter saying: “she is very sad and quiet all the time. She does not smile anymore and seems not to care about anything. I worry that she may try to kill herself; I don’t let her out of my sight”.
The armed group has forcibly separated families, displacing many and causing others to be stranded in the mounts of Sinjar after fleeing their villages. Somewhat between 10,000 – 40,000 Yazidi civilians are trapped in the mountains that looked like a refuge at first, but soon turned to be graveyard for Yazidi children and elderlies. Some 147,000 civilians have safely reached semi-autonomous regions in Kurdistan that flood with refugee camps now. The Yazidi sect accounts for no more than 600,000 across Iraq, a third of which is displaced in Kurdish lands and stranded in the mountains. Left to starve to death or die on the hands of IS fighter; the Yazidis face their fate of being exterminated. Vian Dakheel, a Yazidi parliamentarian from Sinjar has voiced her deep concern for the survival of her people in the parliament, urging the Iraqi government to act and save this minority group from being eradicated. “My people are being slaughtered….the religion is being erased from the face of this planet” said Vian in her speech before the Iraqi parliament.
The conduct of the IS constitutes grave breaches of International Humanitarian Law (IHL), that governs conducting hostilities. Civilians and anyone who is wounded or surrenders are protected under IHL against inhumane treatment. Women in particular should be protected against rape, enforced prosecution or any attack against their honor. Murder, torture, corporal punishment, reprisal, being held in captivity and liberty deprivation and other acts of hostilities committed against civilians are all acts prohibited under the Geneva Conventions specifically the fourth Convention on the Protection of Civilian Persons in Time of War.
Grave breaches of the Geneva Conventions committed by the IS fighters documented by Amnesty International and elsewhere arguably constitutes crimes against humanity as defined under article 7 of the International Criminal Court Roman Statute. Acts of hostilities have been systemic, widespread and targeted civilian population. The major difference between crimes against humanity and war crimes is that crimes against humanity are systemic and widespread. To further advance the argument, it could be said that acts of hostilities committed by IS fighter can account for genocide, as they are targeted towards a specific religious group with the intent to destroy the whole or part of the religious group. Forcing Yazidis to act against their religious beliefs, forcibly converting into Islam, depriving them from their liberty, taking them as hostages and abducting them for not converting to Sunni Islam are clear manifestation of IS’s intent to destroy the religion.
States and especially Iraq, has the responsibility of stopping the atrocities committed by IS fighters. Even though Iraq failed and continues to fails to prosecute IS fighters, it is an international responsibility to stop Yazidi suffering under erga omnes obligation to stop genocide.
Disclaimer: this blogpost attempts to look at the Syrian conflict, more specifically, Airstrikes by several global powers including the US and the UK, from the point of view of the Syrian government. This blogpost will also attempt to represent the Syrian government in terms of legal arguments but also using the language it typically uses. However, this post is not meant to endorse either the actions of the Syrian government or their arguments. It only attempts to present a different view of the airstrikes that is not in the mainstream debate.
President Bashar El Assad has recently decried the airstrikes conducted by the United States and its allies against Syrian territory calling it ‘illegal’ and will end up exacerbating the situation by creating more radicalisation. It is an established fact that Syria, represented by its government, is recognisedby the United Nations and is a member of its General Assembly, has refrained from the use of force in dealing with other states during its civil unrest beginning in 2011. While the US and its allies have committed various violations of international law with varying degrees of severity.
Argument Against Self-defence
The concept of self-defence was expanded to include anticipatory self-defence as well as reprisals after 9/11. More justifications were made by powerful states in order to skirt international law and was supported by apologist scholars, such as the widening of the principles of attribution. Megret argues in his piece “‘War’? Legal Semantics and the Move to Violence” that after 9/11 there was a movement to exceptionalize conflict by using the word ‘war’ in order to justify violating international law and to move away from the strict letter of the law. He argues that states are the primary actors when it comes to armed conflict. Aggression, which warrants a response, can only come from states as opposed to non-state actors. This has been supported by the Nicaragua Case (paras. 246- 249) as well as the Advisory Opinion on the Separation Wall (paras. 138-141)
The US has done this in Afghanistan and now in Syria where it is committing an act of aggression against the Syrian people and desires to change the political system by doing so. In terms of self-defence, according to Megret, the response is meant to be both immediate and necessary and it is certainly not anticipatory. The attacks by ISIL though completely unfortunate and deplorable do not warrant an attack on Syrian territory, being as self-defence works only ifan attack is imminent and its response immediate and necessary. This is also supported by Article 51 of the UN Charter as well as the Caroline test. Syrians were the first ones to be affected by the terror of ISIL and yet they have attacked no one.
Furthermore, Megret argues that the US has expanded the definition of responsibility to justify its attack on Afghanistan by claiming that the Taliban was harbouring terrorists, which is not an action that prompts self-defense. According to the Nicaragua test, the International Law Commission Draft Articles on State Responsibility, even the wider Tadic Judgment, which all require some form of effective control with varying degrees of responsibility do not put the Syrian government under any kind of legal imputation.ISIL is not in any way controlled by the Syrian Government. In fact, it is the Syrian government which is fighting ISIL with men on the ground. From another perspective, if any country wished to fight ISIL, it must be done with coordination and according to particular conditions with the Syrian government as is pointed out by General Assembly Resolution 3314 as well as several ICJ rulings, and not carrying out such terms would also constitute aggression.
Illegality of Supporting Rebels and Airstrikes
It is also an established fact that Syria has been fighting terrorism within its borders by those who wish to destroy the Syrian state, represented by the Un-Islamic State in Iraq and the Levant as well as several other terrorist organisations, some of which are supported by Western powers such as the US, France, and UK as well as some Arab states including Saudi Arabia, Jordan and Qatar. They have supplied the Supreme Military Council, a terrorist organization, with non-lethal weaponry, lethal weaponry as well as food and training. The very fact that Western powers support and fund such organisations is a violation of state sovereignty and political independence. Not only are the US and its allies supporting terrorist organisations, they have said time and time again that the government under Bashar El Assad cannot stand. This all comes in direct violation of Article 2(4) of the United Nations Charter which states that ‘all Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state…’
Moreover, support to terrorists brings into question the Nicaragua test on effective control. The US and its allies may very well be exercising effective control over the Supreme Military Council and perhaps other groups of rebels. If indeed this is the case, this wouldconstitute an armed attack, which would warrant a proportionate action in self defence. However, the Nicaragua Case clearly that supporting rebels against the government is a clear violation of non-intervention. Even during a civil war, states are not allowed to intervene without the express consent of the government. This is confirmed in paragraphs 42-52 of DRC vs. Uganda, which establishes consent as a necessity for intervention in civil wars.While no clear rule exists on supporting opposition in a civil war. Russia, an ally, has obtained the Syrian government’s permission to fight ISIL and was allowed to help in the Syrian struggle against terrorism. However, if a state or a group of states, whether supported by the Security Council or not, simply decides to enter Syrian territory without its consent, under all definitions it would be regarded as aggression. The Nicaragua case clearly faults the United States for its interference in Nicaragua when it used similar arguments.
The airstrikes conducted by the US and its Arab allies prior to the UNSC Resolution 2249 of November 2015 are not only a violation of the UN Charter and general international law but they also constitute aggression according to the United Nations General Assembly Resolution 3314. According to Article 3, ‘bombardment by the armed forces of a State against the territory of another State or the use of any weapons by a State against the territory of another State’ is regarded as aggression, which is also described as a crime against peace.
It would be remiss not to mention Security Council Resolution 2249 of November 2015, allowing for such actions to take place. It is the view of the Syrian government that such a resolution is in fact illegal according to international law, for the Security Council is ultimately a political body seeking out the interests of its member states. Therefore, like every other political body, it must be bound by international law. The claim of aggression is not entirely invalidated by the Security Council Resolution, the Security Council must respond to other claims of violations of international law, which has taken on a much looser interpretation to fit the whims of the powerful. The Security Council is bound in its powers, as confirmed by the Chamber of Appeals in the ICTY as well as the International Court of Justice in 1995 and 1948 respectively. This power is at the very least bounded by the provisions of the UN Charter as well as its object and purpose. This can be seen as a possible way to challenge Security Council action based on a number of provisions in the Charter, including Article 2(4) and Article 2(1) on self-determination as the US and its allies have repeatedly supported rebels and stated that the downfall of the regime is necessary.
During the past few decades, a notable development has occurred to the doctrine of the use of force within the UN Security Council (SC). Pursuant to the UN Charter and the collective security provisions, the UN security body – the Security Council (SC) – is entitled to authorize the use of force to member states for maintaining international peace and security. The UN Charter explicitly provides the SC with a mandate to maintain peace between states, not within them. However, the SC unanimously adopted a new doctrine commonly known as the “Responsibility to Protect” (R2P) by virtue of the SC Resolution 1674. In essence, the R2P doctrine empowers the SC to authorize the use of force in any state regardless of whether the government of such state has provided its consent or not. The institutionalization of such doctrine was however faced with resistance by many member states, especially those with a history of foreign intervention and contested territory. This short article highlights two main factors that contributed to the evolution of the use of force norms within the SC, namely, the desire of the SC to gain prominent social status and the role of the international community in pushing the SC to become more “empathetic and altruistic”.
The mandate of the SC in authorizing the use of force is specifically dedicated to maintain peace and security between states, and not within them. This rule was reiterated by China’s delegates to the International Commission on Intervention and State Sovereignty (ICISS):
“Nowhere in the UN Charter can one find a clause that permits using force, except for national defense under Article 51 and for restoring international peace, as specified in Chapter VII. Using force for moral or conceptual reasons is questionable and dangerous.” (emphasize added)
However, the scope of protection was extended through state’s unanimously voting in favor of Resolution 1674 – the resolution that adopted the R2P doctrine. As a result, the SC mandate was stretched to include “human protection” in the sense that states sovereignty also include military interventions in a country where its “national authorities manifestly fail to protect their populations from genocide, war crimes, ethnic cleansing and crimes against humanity.”
The endorsement of the R2P doctrine by the UN member states through unanimously accepting the adoption of Resolution 1674 shows that the R2P doctrine originated outside the circle of the SC. Importantly, the role of the empathetic international community in seeking to prevent “another Rwanda,” was much more obvious and influential than for individual states seeking to justify self-interested intervention. Hence, claims that R2P is “the return of the civilizing mission,” or was created as a “Trojan horse” for imperialism misunderstand the history of R2P.
There seem to be a relative normative convergence between the five permanent members of the SC (P5) regarding why to use force, despite the existence of a slight degree of divergence regarding how and when to use force. However, state practice, especially those of the P5, clearly shows violations to the international norms that they have adopted and that all seek the status of “responsible power.” This status seeking may not always override material self-interest, but it certainly plays a role in shaping international norms that operate in the collective interest and help facilitate collective-action.
The social influence and empathy of states is yet another element that had a direct impact on the evolution of the use of force norms. Although the pace and depth of such influence might not be as much as expected, it is evident that empathy remains an important factor in boosting the development of international security norms. As such, both empathy and social influence albeit insufficient, are necessary variables in explaining the evolution of use of force norms.
The Rwandan genocide case is an obvious example in the evolution of the UN use of force norms. Importantly, the role of key international players in spreading the devastating social impact of genocide in Rwanda influenced the work of the International Commission on Intervention and State Sovereignty (ICISS) – the Commission that had a leading role in the adoption of Resolution 1674. Also, the role of international human rights’ advocates in circulating stories of atrocities, massive human rights violations, and people sufferings to reach to a wider audience seems to have equitable effect in the evolution of the use of force norms. In other words, empathy and social influence dimensions are gaining more and more importance in the development of use of force norms function.
Moreover, the growing international expectation of the SC’s “responsibility to protect,” with or without the consent of governments is yet another significant development. The SC is, by virtue of its mandate, obliged to take action and intervene in domestic conflicts, even if such intervention violates state’s sovereignty. One of the issues that remain questionable is why did the SC intervene in the Libyan conflict and not in Syria. Apart from strategic or economic motives, a number of justifications were bolstered for the international military intervention in Libya, of which is the empathy for people suffering in Syria and the institutionalization of human rights norms posited in international law. It is worth mentioning that the social impact of human rights norms has a direct correlation on international security culture, and thus ordering international society. This backs our argument that emotion and social influence have a significant effect on international relations, and specifically the evolution of the SC’s authority to use force.
Despite the fact that the expansion of the UN SC’s doctrine of R2P carries risks in as much as benefits, particularly in the expansion of the “circle of empathy,” the implementation of the R2P should not be taken for granted. It is not uncommon that the SC’s intervention could fail to materialize in every conflict, but the expectation for it to try, even at risk to its own members, remains significant. This narrative shows that the process of institutionalizing empathy and altruism have played a critical role in the decline of many oppressive and violent practices. Thus, although it may not seem likely at present, the adoption of R2P may be a watershed moment in history. Moreover, globalization in itself is likely to bring a more interconnected world that makes the sharing and spreading of emotions and human rights norms easier leading to a more peaceful world.
On Sunday 10th May, one of the F-16s of the Moroccan Royal Armed Forces involved in the international coalition led by Saudi Arabia intervening in Yemen went missing. For the following days, both sides- the Houthi and the coalition searched into what happened to this missing plane. The coalition concluded that the security and safety of the pilot is the Houthis’ responsibility. On Friday 15th May, the body of the pilot has been located and found dead and his body returned home later the same week. This incident highlights a broader question and issue in relation to current events in Yemen – whether the war in Yemen is an International Armed Conflict or Non-International Armed Conflict.
The historical background of the Yemeni situation is crucial to understanding the significance of this question. Yemen today is divided into a violent political struggle between two forces: the internationally recognized president Abd Rabbuh Mansour Hadi and his government and the Houthi militant forces, which pushed the president and his government from power and into exile and occupied the capital Sana’a. President Hadi announced his resignation and sent a letter of his resignation to the parliament stating that he could not continue in his office after the Houthis failed to honour a peace deal. Parliament has reportedly refused to accept the resignations.
These forces, few weeks later, dissolved the parliament and established what is called the revolutionary committee. Hadi had been under virtual house arrest in his residence in Sana’a for a month until he found a way to escape to Aden. Upon his arrival in Aden, Hadi withdrew his resignation and considered all the previous actions from the Houthi forces as a “coup d’état.”
On 25th of March, president Hadi asked the UN Security Council to authorize “willing countries that wish to help Yemen to provide immediate support for the legitimate authority by all means and measures to protect Yemen and deter the Houthi aggression,” and his Foreign Affairs Minister Riad Yassin requested military assistance from the Arab League based on the collective self-defense doctrine under the article of 51 of the UN charter.
Internationalizing the conflict
The following day after request, the Arab Coalition led by Saudi Arabia – backed with US strategic support – started launching airstrikes against Houthi bases in Yemen. The coalition insists on their right to respond to the requests and needs of president Hadi and to provide military assistance to the legitimate authority in Yemen. The intervention and the death of the Moroccan pilot raised the question of whether the Yemeni situation still is Non-International Armed Conflict or had it turned into an International Armed Conflict?
Bear in mind that all of the countries in the war including Yemen signed and ratified the four Geneva Conventions of 1949 and Additional Protocols I and II.
The situation in Yemen, before the coalition intervention, can be considered a civil war or Non-International Armed Conflict (NIAC) as per Common article 3 of the Geneva conventions and additional Protocol II. Common article 3 establishes the minimum standards of the laws of war, which are to be applied in an armed conflict taking place within the boundaries of a state, like the war between the government and a rebel group or two rebel groups. Common article 3 sets the minimum standards that each party in the conflict should be bound by during the conflict which focuses on treating non-combatants, the wounded and sick humanely and without any discrimination depending on race, color, religion or faith, sex, birth or wealth, or any other similar criteria. The other obligations under the four Geneva conventions are not applicable during this kind of conflict.
After the international coalition military intervention in the war, this protection is limited in comparison with the protection under the four Geneva conventions and additional protocols I and II, especially after the increase of the Yemeni civilians’ death. The international coalition intervention in Yemen changed the situation on the ground. Therefore, we should accept that the coalition intervention affected the Yemeni situation and turned it into an International Armed Conflict (IAC), where the Four Geneva Conventions and additional protocol I apply, especially between Houthi militias and the coalition forces. Despite the fact that, the coalition intervened in the situation on behalf of the internationally recognized government, the effective control over the Yemeni territory remains in doubt as Houthi militias control the Capital, in addition to the massive amount of the death and injuries, this pushes us to consider the situation a International Armed Conflict, which would increase the need to protect civilians from the damaging results of the crisis and work towards the International Humanitarian Law principles.
The consideration of the Yemeni situation as a NIAC will put the international community in contradiction with the object and purpose of the four conventions because the Geneva Conventions were adopted to guarantee the protection of the civilians and military personnel who are no longer taking part in hostilities. The spirit of the provisions of the Conventions pushes us to adopt the four Conventions and to increase the protection for the Yemeni civilians, who are facing a humanitarian crisis because of the war. Indeed, if we cannot stop the existing war and the humanitarian crisis, we should at least increase the protection for the civilians and the military personnel and adopt the wide scope of the object and the purpose of the four Geneva Conventions. I’m advocating towards the implementation of the four Geneva Conventions and Additional protocols, as way to protect the nation from a full blown crisis.
Moreover, the fighters from the Houthi’s and the coalition should be considered combatants and if they are detained. In this case, the third Geneva Convention relative to the treatment of Prisoners of War (POW’s) should be adopted. I believe that the Yemeni situation is critical and has transformed from a Non-International Armed Conflict into an International Armed Conflict, where the four Geneva conventions should be applied along with their protections. Therefore given that the Yemen conflict has become an international armed conflict, the countries involved in the Saud-led coalition and the Houthi militias need to act according to International Humanitarian Law and respect the rules of law, particularly the protection of civilians and POW’s.
One of the great fears that face humanity nowadays is related to the question of whether our species is going to stand the test of time, or go extinct like many others. From the many versions of how our civilization is going to end, the greatest fear of all is self-destruction through the use of nuclear weapons. Nuclear apocalypse was and is still present in the imagination of our cultures. As a result of that, one would expect the international community to have a very firm view on the illegality of the use of such weapons of mass destruction. Surprisingly enough, the International Court of Justice in its advisory opinion on the threat or use of nuclear weapons was actually inconclusive. I am going to argue against this ambiguous opinion of the ICJ. I am going to clarify the reasons why the ICJ’s opinion should have been definitive on the illegality of the threat or use of nuclear weapons no matter what. Although this advisory opinion was in July 1996, I think we need to reemphasize the issue again. The reason for this is that we are living in a more insecure world. There is more Climate Change problems which are affecting the economies of many countries. Also there are more religious and political conflicts. All of this sets the world for more competition and more rivalry, which should make us wary of the danger of the existence of nuclear weapons.
According to the advisory opinion of the ICJ, the threat or use of nuclear weapons is generally contrary to the principles of the international law with the exception of the extreme cases of self defense. This is demonstrated in point (E) of the second clause of the dispositif;
It follows from the above-mentioned requirements that the threat
or use of nuclear weapons would generally be contrary to the rules
of international law applicable in armed conflict, and in particular
the principles and rules of humanitarian law;
However, in view of the current state of international law, and of
the elements of fact at its disposal, the Court cannot conclude
definitively whether the threat or use of nuclear weapons would be
lawful or unlawful in an extreme circumstance of self-defence, in
which the very survival of a State would be at stake
The controversy of the point of extreme case of self defense is clarified by the voting on this clause, as it was seven votes to seven by the president’s casting vote. This controversy one would expect from a political discussion not in an opinion of the ICJ. This point is the main direction of my critique, but there is also point (B) in the same clause in which the court states that;
There is in neither customary nor conventional international law
any comprehensive and universal prohibition of the threat or use
of nuclear weapons as such
From the court’s point of view the fact that nuclear weapons have grave effects on the environment does not conclude the total ban of their use in certain circumstances. It is because the environmental concerns can possibly be tolerated if there exists the requisite military necessity. We can accept this if the effects of nuclear weapons are of limited effect and can be contained, but it is obvious that the effects of nuclear weapons cannot be controlled. These effects are of great and massive effects not preceded by any other type of weaponry. Thus their effects on the environment do not concern just the parties involved in the conflict; they involve the whole planet.
According to the ICRC, international humanitarian law bans the use of weapons which cause superfluous injuries or unnecessary suffering by their nature. Although IHL does not explicitly ban the threat or use of nuclear weapons, but the very nature of these weapons contradicts with the ban of superfluous or unnecessary suffering. The use of nuclear weapons also contradicts with the principles of protecting civilians in armed conflicts, as they do not discriminate in their destruction. This is because even if they are targeted in a way to only achieve military objectives, their effects such as radiation cannot be controlled. They might also violate the right of neutrality, as they might harm other states that are not party to the conflict.
As for the point of using nuclear weapons in self defense, it is known that any state in using its legitimate right of self defense has to follow the principles of necessity and proportionality. The ICJ does not clarify in its opinion the difference between the extreme case of self defense and the normal case. This is a new type of classification originated by the court. Perhaps the court meant to explain this by inserting the phrase ‘when the very survival of the state is at stake’, but even this is a very vague statement. It can be interpreted differently which contradicts with the purpose of the advisory opinion. May be what is meant is the case when the state is facing a nuclear attack. In that case, I do not see the reason for the probable legality for their use of nuclear weapons as a means of defense. Nuclear weapons by their nature can only be used for offense. If we assume that a state is being attacked by a nuclear weapon, how can it use a nuclear weapon to defend itself? It would be an act of reprisal that is not allowed by international law. The argument that an attacking state will learn that it will be equally damaged if it uses a nuclear weapon is not a good argument or else we can use it to justify any reprisal actions.
My considered opinion is that the use or threat of use of nuclear weapons
is illegal in any circumstances whatsoever. It violates the fundamental
principles of international law, and represents the very negation of the
humanitarian concerns which underlie the structure of humanitarian law. It offends conventional law and, in particular, the Geneva Gas Protocol of 1925, and Article 23 (a) of the Hague Regulations of 1907. It contradicts the fundamental principle of the dignity and worth of the human person on which all law depends. It endangers the human environment in a manner which threatens the entirety of life on the planet.
He is on the firm ground that the court should have settled the legal question in favor of banning the threat or use of nuclear weapons under any circumstances.
In conclusion, the topic in question clearly shows the indeterminacy of international law on the matter, which clearly shows the need for a direct global cooperation on the general ban on the threat or use of nuclear weapons under any circumstances. The use of such weapons is not of the concern of the individual wills of states, it is a matter of global importance and the political consideration should be put aside in such an issue that involves the survival of our species and our whole planet.
The purpose of this simulation is to outline the potential debate between the International Criminal Court Prosecutor and the Israeli Defense Council in a theoretical trial of Ehud Olmert in the ICC for crimes committed during the Gaza raids of 2008/2009. This scenario is fictional and it is the writer’s own speculation on the Court’s proceedings. The matters of concern include the Court’s jurisdiction, the trial of Olmert for committing certain crimes, and the verdict. Issues of admissibility will not be discussed here. The Palestinian state has referred this case to the Court.
Women and children have been killed, homes raided, and hospitals bombed.
Israeli forces began by killing six Hamas gunmen, which effectively breached their four-month ceasefire.
Hamas responded by shooting rockets toward IDF camps, which caused no deaths or injuries.
IDF forces began raiding Gaza, Khan Yunis, and Rafah, which are densely populated with civilians.
Israel enforced an economic and political blockade on the Gaza Strip, restricting importation of goods, closure of border crossings, and cutting fuel and electricity.
Israel established a buffer zone on the borders of Gaza and Israel affecting Gaza’s economy by reducing Palestinian fishing zones, reducing land available for agriculture and industry, and reducing the ability for health, water, and other public sectors to respond to the emergency state.
The Israeli navy shelled the coast of Gaza.
Israeli armed forces launch several attacks against buildings and persons of Gaza authorities, including the Palestinian Legislative Council building, the Gaza main prison, 6 police facilities resulting in the death of 99 policemen and 9 civilians.
A ground invasion took place on January 3rd effectively increasing the death toll of civilians and violating several principles of international law.
Shelling of al-Fakhura junction in Jabaliyah by Israeli armed forces, which is located next to the UNRWA school.
Israeli forces destroy civilian life through destruction of industrial infrastructure, food production, water installations, and sewage treatment plants and housing.
Palestinian civilians in Gaza are rounded up and detained throughout the conflict.
A unilateral ceasefire was declared by Israel on January 18th and a few days later the land was evacuated.
Throughout the conflict, Prime Minister Ehud Olmert endorsed the acts of the IDF and was a key decision-maker in the process as a whole.
Prime Minister Ehud Olmert has shown considerable responsibility for the acts that have occurred in the Gaza Strip through his public statements and should be tried accordingly for war crimes and crimes against humanity, among other violations under international humanitarian law. Palestine has become a non-member observer state of the United Nations since November 2012. In December 2014, Palestine ratified the Rome Statute and granted the International Criminal Court jurisdiction to adjudicate on crimes committed in its territory. The ICC is therefore required to try Olmert for the acts committed during this conflict due to the fact that Israel has yet to make reparations for the homes that have been destroyed.
According to Article 5 of the Rome Statute, the Court has the jurisdiction to try individuals for crimes against humanity and war crimes, both of which have been committed by the State of Israel under the command of Ehud Olmert, which under Article 28 of the Statute, regarding responsibility of military commanders and other superiors, considers him responsible. Furthermore, as per Article 14 of the Rome Statute outlining jurisdiction, the Palestinian State has referred the case to the Prosecutor for investigation, and as a party to the Rome Statute the court has jurisdiction over crimes that occurred in Palestinian territory.
It must be established that the State of Israel has explicitly expressed its unwillingness to become party to the Rome Statute since 2002, as it does not wish to grant the Court jurisdiction to adjudicate on matters related to its occupation of the Palestinian territories. Considering that Prime Minister Olmert was not within the Palestinian territories during the attacks, and is not the military commander or the superior of the IDF (the Minister of Defense is), the Palestinian state cannot refer him to the Court. In addition, because the State of Israel is not bound by the Statute and has not accepted the Court’s jurisdiction the Court therefore does not have the jurisdiction to try Olmert on the mentioned crimes.
Furthermore, regarding the Palestinian State’s referencing this case to the Court, Palestine only became party to the Rome Statute in December 2014 and gave the Court jurisdiction to adjudicate on matters since June 2014. The Statute expresses its non-retroactivity under Article 24; therefore, the Gaza raids of 2008/2009 are not under the jurisdiction of the court.
The Palestinian State has granted the Court retroactive jurisdiction under Article 11 of the Statute, which can go as far as 2002 when Palestine declared its independence and created a three-branched government. In addition, Palestine initially submitted its request to become a party to the Statute in 2009 and the Court is willing to consider this as its intent to have the Court consider the events of 2008/2009. Furthermore, under Article 28 of the Statute, there is no mention that the superior of military forces must be present on the land where the crimes are taking place and the practice of structure of command in the IDF has proven to show that Prime Minister Olmert is directly involved in IDF’s military actions. The attacks occurred on the lands of the Palestinian State and the Court therefore has jurisdiction over this case and we will proceed to assessing the crimes.
It must be noted that in reality, the ICC Prosecutor has rejected the retroactive application of this case, and decided to only consider situations that arose after General Assembly Resolution 67/19, upgrading Palestine’s status in November 2012. Furthermore, since the Prosecutor rejected Palestine’s admission to the Court in 2009, the issue remains debatable in the international community if this motion will be regarded as an express of intent. However, for the purposes of this simulation, we will assume that the Prosecutor has accepted and will proceed to assess the crimes.
Furthermore, War Crimes are defined under Article 8 of the Statute. Israel is in violation of this article in which it has breached the Geneva Conventions of 1949 in several cases, which amounts to war crimes.
Finally, Olmert was in violation of the principle of necessity and proportionality, whereby the Israeli response to the threat of attack by Hamas forces is not justified by military necessity as mentioned by the Human Rights Council in the Report of the UN Fact Finding Mission (p. 17). This is particularly true when Israel deliberately attacked governmental buildings and civilian property (as mentioned in the facts) claiming that these institutions are a part of the “Hamas terrorist infrastructure”, while the UN Fact Finding Mission rejected this position entirely with the argument that there was no evidence to provide that these institutions “made an effective contribution on military action” (p. 17) and therefore was useless in furthering military benefit for Israeli forces. It is clear that there was a deliberate target of civilians, which not only violates the Geneva Conventions in the protection of civilians, but also completely violates the principle of military necessity and proportionality under customary international law. The attacks were not proportional, as the Hamas rocket response, that did not cause any injuries, did not constitute as a large-scale attack that required the invasive response that Israel took on January 3rd, which was also determined by the HRC (p. 86). Israel’s use of certain weapons such as white phosphorus and uranium munitions is also a violation of the principle of proportionality as well as a violation of the Geneva Conventions in causing superfluous injury and unnecessary suffering to soldiers let alone civilians (p. 194 of the HRC). We aim to reemphasize Olmert’s violation of Article 28 of the Rome Statute, where Olmert is “criminally responsible for crimes within the jurisdiction of the Court committed by forces under his…effective command and control, or effective authority and control” as per the provision under section (a). It is significant to note that Olmert knew that his subordinates were committing these acts and “failed to take all necessary and reasonable measures within his…power to prevent or repress their commission…” Olmert specifically ordered the launch of a wide-scale military attack on Gaza. He is therefore in breach of Article 28 in its entirety.
It must be noted that in 2008, Palestine was yet to be declared a state by the United Nations and gain recognition of other states. Its Declaration of Independence in 2002 does not constitute statehood as per the Montevideo Convention. Therefore, it was considered to be under the military control of Israel and lacked the attributes of sovereignty as the Palestinian Territories during the 2008 conflict. Furthermore, the attacks that were occurring were led by the non-state actor, Hamas, which is deemed as a terrorist organization. This means that the conflict occurring is of a non-international character and therefore Common Article 3 of the Geneva Conventions is the only applicable law under Article 8.c, d, e, and f of the Rome Statute, which Olmert cannot be found guilty of. This is because the violations of these were not committed directly by Olmert. Considering the Prosecutor has invoked Article 28, there has been no proof to show that Olmert was directly responsible for the conduct of each and every one of his soldiers and commanders. Olmert, even under Article 28, is only in charge of the large military strategy. Common Article 3 stipulates that no attacks should be made on persons taking no active part in the hostilities. Any breaches of this article would potentially hold solider or commanders liable. There is no proof that Olmert knew about these violations and could have prevented them.
The Hamas organization has chosen to use the tactic of hiding behind civilians causing the IDF to be forced to attack residential areas where the organization resides. These are necessary targets that justify military utility. With regards to the proportionality aspect, the use of certain weaponry is proportional to the threat of future attacks that Hamas may pose on Israel.
The threat of future attacks is an element of jus ad bellum and not the law of armed conflict (jus in bello). We are questioning the elements of the crimes from an IHL perspective, so kindly refrain from involving irrelevant aspects. Please proceed.
Thank you, Judge. The final statement is that the Israeli forces took the necessary and adequate precautions by warning civilians before every attack. They did this through telephone calls, leaflets, and radio broadcast. Israel also encouraged residents to leave the premises where danger may occur, as noted in the UN Fact Finding Mission on page 18.
Therefore, Olmert is in no violation of Article 8.e of the Rome Statute due to the fact that the attacks of civilians or civilian materials were clearly not intentional but necessary to end the conflict and deter the threat.
There is a concrete argument that the International Criminal Court may have jurisdiction over the case of the Prime Minister Ehud Olmert committing crimes during the Gaza raids of 2008/2009. However, the intricacies of the conflict reveal much debate and controversy, as both parties to the conflict have arguments in favor and against them. This kind of tribunal would most likely take months, if not years, to reach a verdict. Therefore, it would be difficult to provide a simplified verdict in such a case. This was merely a demonstration of the complications that may arise from such a tribunal.
I never thought I would be writing about an Egyptian military intervention into another country in my day and time, but the dramatic changes and developments in the armed conflict in Libya has posed the question of whether Egypt’s role in this situation was legal or not. At the same time, the question of which doctrine of the international law Egypt can use to justify the Airstrikes on Da’esh is raised – whether the self-defense and or protecting citizens abroad or assisting another state.
On 15 February 2015, a video was released showing images of 21 kidnapped Coptic Egyptians being killed by a militant group declaring their loyalty to ISIS or Da’esh. As a response to this video, which I don’t think is appropriate to share; the Egyptian president announced a week of mourning over the victims and called for an urgent meeting with the National Defense Council. A few hours after the meeting, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.
These air strikes open the question again about the legality of the Egyptian Military intervention inside the Libyan territory especially after the different statements from the President Sisi and the Foreign Affairs Minister in UN Security Council meeting.
The historic background of the Libyan situation is significant in this context. Libya today has divided into a violent political struggle between two major powers: the internationally recognized, Tabruk parliament and Tripoli’s parliament. The Islamist groups cooperated with Misrata’s forces to stage a counterattack in Tripoli and occupy the capital. This forced the newly elected parliament into exile to Tabruk to be under the protection of general Haftar.
Alongside with this political struggle and declining situation, in June 2014, the jihadist group Majilis Shura Shabab Al-Islam (the Islamic Youth Shura Council) in Derna announced its allegiance to the Islamic State in Iraq and Syria (ISIS). A few months later, the organized militant group in Egypt, Ansar Beit Al-Maqdis, which continually attacked the governmental buildings and military bases, also announced its allegiance to ISIS and changed its name into Wilayet Sinai or the Sinai State. This link between the groups increases the suspicion of cooperation between the two groups and increases military operations against the Egyptian government and Army.
The use of language
A few hours, after the president Abd El-Fatah El-Sisi’s speech on the killing of 21 Christian Egyptian in Derna by militant group loyal to ISIS, Egyptian Air forces launched strikes against militant targets and fighters of ISIS in Derna, Libya.
The Egyptian citizens reacted to the video of the killings with significant anger and asked for revenge and reprisal attacks. During his speech president Sisi used the word “the right of response” to the killing of the Egyptians in Libya. Also, the ministry of Foreign affairs issued a statement after the airstrike stating that the airstrikes were under legitimate right of states of self-defense individually or collectively and its right to protect its citizens abroad. The linguistics used in both statements refers to framing the airstrikes towards the Egyptian citizens and protecting the citizens. The president statement directed to the citizens, and to settle down the anger of the citizens, but at the same time, statements like revenge or reprisal are not appropriate to be used in the international law context.
Therefore, framing the argument and defense of the attack through “the right of response” is to legitimate the illegitimate act.
A few days later, the weakness of the doctrine of the right of response and the excuse of protecting of citizens abroad which had been used by the president and the ministry of foreign affairs was clear. The use of this doctrine in international law is rare and is not preferred. Therefore, during the UNSC urgent meeting in relation to the situation in Libya, the Foreign Affairs Minister instead commented on the Egyptian airstrike in Libya by using a different argument for the strikes, by stating “Egypt has decided to respond to the requests and needs of the Government of Libya and has provided military assistance”. The Foreign Affairs Minister’s statement framed the airstrikes as assisting the Libyan government in the war against terror after asking for help as part of consensual intervention, as the coordination and assistance of another country is not a violation against international law. Therefore, Egypt’s strikes over the Libyan territories were not in contradiction of the United Nations charter and customary international law. This new statement is directed to the international community, thus the language used must be the most appropriate to be accepted in doctrine and according to international law.
The word and framing used is important in international law and in strengthening the legitimacy of the Egyptian airstrikes in Libya. The justification of airstrikes based on the self-defense and/or protecting civilians abroad arguments or the right of response are weak in international law in comparison to the argument of the assistance of another country in the war against terrorism. The president used the phrase right of response to comment on the killing of Egyptians in Libya because he was directing the statement to Egyptian citizens while the Minister of Foreign Affairs could not use a weak legal argument in his speech to the international community justifying the airstrikes. Therefore, he used the argument of state requesting assistance of another state. The linguistics used by the president and foreign affairs minister differ because each one of them is talking to a different audience. Framing and language of law is just as important domestically as it is internationally.
The Arab Spring uprisings really did shake the region in many different ways. The first two countries, which were swept by protests, namely Tunisia and Egypt came out without need for, or suggestion of intervention. Libya and Syria, however, had quite a different experience. What looked like the beginning of an uprising, much like different Arab countries, quickly spiraled out of control and turned into a full fledged civil war, aggravated by international intervention whether through political recognition of rebel groups, materialistically supporting different factions, or physical use of military power. The reaction of many different states after the Arab Spring skewed away from the normative understanding of certain principles of international law. The most significant principle of these is recognition, particularly recognition of governments.
The principle of recognition is very important in this context, because International Humanitarian Law principally depends on the legitimate and recognized government to regulate use of force, and intervention from other states. Intervening on behalf of the recognized legitimate government, subjects the intervening countries to much less rigorous standards in the law of armed conflict than if countries intervened on behalf of a “rebel group”. That is why the issue of recognition and twisting the normative understanding of it, is an matter which needs to be understood from a legal perspective, not just as an issue of political support.
What is recognition?
The traditional, legalistic understanding defines recognition as “a method of accepting certain factual situations and endowing them with legal significance” as defined by Malcolm Shaw in his textbook, properly titled ‘International Law’ (6th ed. P. 207). Thus, it is fair to adopt the notion that the issue of recognition in international law had previously taken the form of recognizing the independence of newly formed states. International law was neutral to the dispute of changes in governments within states, as it was considered an internal matter. Recognition of states by no means a simple issue, nor does it take merely a legalistic position, without considering the political one as demonstrated in CGP Grey’s video on recognition of states. On the other hand, recently, recognition also came in the form of recognizing governments of states that are already established and independent, and this is what I intend to focus on in the post-Arab spring political moment.
Of course the two types of recognition can intertwine and it is important to keep that in mind. In 2010, the ICJ gave an Advisory Opinion on the Declaration of Independence by Kosovo. The court deterred from answering the awkward issue of secession, and opted to focus on the very action of declaration of independence by Kosovo by a minority group, and it deemed it legal under international law. However, they did not explicitly say whether Kosovo should gain independence and be recognized as a state or not by the international community in support of this minority group. This type of “intertwined” recognition status is quite important for issues of self-determination particularly internal self-determination. Internal self-determination is defined as “may refer to various political and social rights” as defined by the LLI of Cornell University Law School. This is critical in the discussion of the legal position of the Syrian rebel groups, as will be discussed in the section on Syria’s SNC.
Both types of recognition, whether it is the declaration of an independence of a state or recognizing rebel groups as the legitimate government of certain states have always been a sour note in international law, particularly by the Security Council. In1965, when Southern Rhodesia declared independence from the UK’s colonial domination, the Security Council issued multiple resolutions (Resolution 202, Resolution 216, Resolution 217), which “regard[ed] the declaration of independence by (the Rhodesian government) as having no legal validity”. The resolutions dismissed the entity that declared independence, as a “racist minority”, although that entity was the de facto government, as Southern Rhodesia had been self-governing since 1922 and had all four aspects, which qualified it as an independent state, under article 1 of the Montevideo Convention on the Rights and Duties of States. Independence was later granted in 1980 to what we now know as Zimbabwe.
Fast forward to 2001, state practice was still completely disregarding so called “rebel groups” as the representatives of a country, regardless of their actual control of the territory. The line between de facto control of a certain territory, and the international de jure government and diplomats did not always meet, particularly with Afghanistan. Ever since their emergence in 1994, the Taliban was effectively taking control of the country after the old soviet-backed regime collapsed. The Taliban went on to have de facto control over 90% of the country; however, they were not internationally recognized as the legitimate government or the legitimate representatives of the people, even though the Security Council obliged them to adhere to the Geneva Conventions, in article 12 of Security Council Resolution 1193 (1998).
“Legitimate representative of the people”
A certain practice seems to have been popularized post/during the Arab Spring where states and international organizations have been declaring that a certain rebel group is the “legitimate representative of the people” of a certain state. It started with the National Transition Council (NTC) in Libya, and then the Syrian National Council (SNC) was also recognized in Syria in the same manner as in Libya. What is surprising is not just that they recognized rebel entities, but that most countries recognized them as the legitimate representatives of the people, NOT the official government of the state. What does “legitimate representative of the people” mean without being the recognized government?
The first time this term was used was in the recognition of the Palestinian Liberation Organization (PLO) as the legitimate representatives of the Palestinians under UN General Assembly Resolution 3210 of October 1974. This was reaffirmed a month later in Resolution 3237 when the PLO was admitted as an observer entity in the UN. This status was given due to the fact that Palestine did not qualify as a state in accordance with the Montevideo convention, hence, it cannot be treated as a full sovereign government, yet they possess the right of self-determination. The term “legitimate representative” was used as an answer to an awkward situation, when certain groups of people clearly have the right of self-determination, but did not have the right to the status of statehood. Post 2011 however, it became the go-to term to express disapproval of regimes in states, and supporting a different entity in their claim to govern that state.
To break it down, recognizing an entity as a legitimate representative of the people, while not recognizing that they are the legitimate government of a territory, is reminiscent of colonial times. This is when liberation groups existed within a non-self-governing territory, which was under “colonial domination, alien occupation and…racist regimes in the exercise of their right of self-determination” as described in the ICRC Additional Protocol I, perhaps as the first step in recognizing the independence of these entities.
The problem in this description is that, even though Libya and Syria were confronted with serious rebellion, and the legitimacy of the regimes in both countries was and is seriously in question, yet placing the rebels within the same understanding of entities aiming for state recognition is a bit of a stretch, as their state is already recognized, here have been many “local” dictators before, yet the international community did not rally behind an armed faction for “Self-determination” unless succession was in question. This obviously changed in the cases of Libya and Syria, and in order to understand the reasoning behind this unconventional declaration, the events that followed this statement of the peoples’ legitimate representation, should be examined.
On 10th of March 2011, around a month after protests and armed civil unrest started in Libya against the country’s dictator, Colonel Muammar Gaddafi, the French president, Nicolas Sarkozy declared the National Transitional Council (NTC) is the “sole legitimate representative of the Libyan people”. This came with a movement of support from the US and EU countries towards the NTC. The United States went as far as discussing with congress the possibility of allocating Libya’s frozen assets from Qaddafi’s regime to fund the NTC according to an official statement made by Mark C. Toner, the Acting Deputy of the US State Department. However, recognition of the NTC as the legitimate government was an issue, which the US was still concerned about from the legal point of view. On the 11th of April, the US Ambassador in Libya stated: “Recognition remains a legal and an international obligations issue that we’re still studying, and we have not made a definitive determination on that question. But that has not stopped us from doing everything that we could to support the NTC and the Libyans”.
On the other hand, recognizing an entity as a legitimate representative of the people does not need the rigorous criteria that are put forward when recognizing an entity as the legitimate government of a state, particularly when it was not a fully democratic process that brought that entity to power. One thing is certain though, once there was recognition that the NTC is the legitimate and sole representative of the people, any form of friendly relations with the (at the time) existing regime, were cut. This is based on the principle of sovereign equality of States as stated in UNGA Resolution 2625 on the principles of friendly relations among states.
There were many question marks over this step, like, what does this recognition mean from an international law perspective? Does the fact that the NTC effectively took the seat of Libya as the country’s representative in the UNGA equate to them acting in the name of the state on the international platform? And most importantly, does this give the NTC the right to invite another government to intervene militarily in Libya?
UN Security Council resolution 1973 called for a ceasefire from all Libyan entities and return to diplomacy, however, it was used as the pretext for the NATO intervention in Libya, which completely skewed the conflict in favor of what became the NTC. The legality of NATO’s intervention was not questioned. However, Professor Noam Chomsky argued in an interview that NATO clearly violated the resolution, as they were the first to break the ceasefire. On another note, the US Secretary of State during the crisis, Hilary Clinton, stated to CBS news channel that arming the NTC would be legal under resolution 1973, even though resolution 1970, article 9 clearly prohibits the arming of Libyans according to a BBC article. The question of whether or not the rebels (yet legitimate representatives of the people) are included in this arms embargo or not, had NATO split on the topic. It seems that the NTC fit whatever position was deemed appropriate at the time, and this was paved by such an ambiguous recognition.
The situation in Syria is still progressing daily, and it seems like the conflict has reached the point where the legality of any action would be placed into question. However, let us examine the situation from the beginning in order to understand the intention and gravity of what followed, and let to the current pandemonium. In October 2011, the Syrian National Council (SNC) was formed from the “internal and exiled opposition activists”, as reported by the BBC. This came after months of military brutality against opposition groups rallying against the Syrian president, Bashar Al-Assad.
By 2012, many countries, including the United Kingdom, recognized the NTC as the sole and legitimate representative of the people. Foreign Secretary of the UK, William Hague gave a speech in the parliament, in which he declared Her Majesty’s full support and recognition of the SNC as the sole and legitimate representative of the Syrian people. In the speech, he additionally established the bases by which their foreign relations will continue moving forward. He stated that, with recognition, comes the responsibilities of the SNC to “uphold their commitments”, though he did not say whether these included observing international conventions and treaties or not. He also stated that the SNC would have a political representative in the UK. Finally he pledged a large id package to the SNC controlled areas (with the Hear, Hear! of the parliamentarians in the background).
Now going back to the same starting point of the Libyan crisis of this odd recognition being reserved to peoples fighting for self-determination, even with the objection to Bashar Al-Assad’s regime, it would be stretching it to say that it is a racist regime, legally speaking (notwithstanding my personal opinion on the atrocities which were committed in Syria). However, for argument’s sake, let’s assume that this really is an issue of self-determination of a people within an established state. Firstly, we need to look at the International Covenant on Civil and Political Rights (ICCPR), in the first article, it states:
“All peoples have the right of self-determination. By virtue of that right they freely determine their political status and freely pursue their economic, social and cultural development”.
The case of the SNC makes sense when the second article is examined, where it is stated that:
“Each State Party to the present Covenant undertakes to respect and to ensure to all individuals within its territory and subject to its jurisdiction the rights recognized in the present Covenant, without distinction of any kind, such as race, colour, sex, language, religion, political or other opinion, national or social origin, property, birth or other status.”
Now it can be argued that the Syrians are seeking self-determination internally, and that is through the SNC as their representative. In that case, the principle of non-intervention does not apply in the same way that was presented in the ICJ ruling of the Nicaragua case, where it was it was deemed that any form of arming or supporting a rebel group is considered illegal. On the contrary, in UNGA Resolution 35/227 (1981), on the question of the self-determination in Namibia, Article 6 clearly encouraged other states to support South West Africa People’s Organisation (SWAPO), in “material, financial, military and other assistance”, in its pursuit of self-determination. It seemed that this is the direction other states have agreed to follow, since the US’s Military and the CIA have agreed to train and equip the Syrian opposition and the legality of this action has not been contested.
To conclude, it is safe to assume that 2011 onwards saw a swift change in the practice of international organisations, UN organs and Western states regarding the recognition of rebel groups. Furthermore, the arming of opposition groups has been a ‘right’ that many countries have maintained and argued strongly for, particularly in self-determination conflicts. However, as the conflicts in Libya and Syria linger, and the atrocities of war seem to be normalized every day, the question remains as to whether more intervention will actually end these conflicts any quicker.
Since the 2011 uprisings, Syria has been facing bloodshed between two factions in society; the government, led by Bashar Al Assad’s regime, and the opposition, largely responsible for the uprisings. The Syrian regime has not met these uprisings with kindness. Instead, state security apparatuses have been using modes of violence against these groups including the extensive use of chemical weapons. The question lies in whether the regime’s reactions to the uprisings are lawful under International Humanitarian Law (IHL) or not.
It must be established that the International Criminal Court (ICC), has not taken Bashar Al Assad to trial because it is argued that the ICC does not have jurisdiction over the case. Under Article 12 of the Rome Statute, the ICC only has jurisdiction if (1) the state that the individual represents is party to the Rome Statute, (2) if the state that the individual represents accepts the jurisdiction of the Court, or (3) if the Security Council has referred the case directly to the Court.
Under the first condition, Syria has only signed but not ratified the Rome Statute, absolving it from being bound by all of the provisions of the Statute, but only its object and purpose. Under the second condition, Syria has not accepted the jurisdiction of the Court, given that the regime represents the state. Based on the third condition, the Security Council has not referred the case to the Court largely because of political reasons as argued by Annika Jones in her paper Seeking International Criminal Justice in Syria. The fact that China and Russia have shown a lack of support for a referral and have vetoed resolutions attempting to refer the situation in Syria to the Security Council, means that the Council has been ineffective in granting the Court jurisdiction to adjudicate on the case. Russia specifically suggests that the referral is “ill-timed and counterproductive” as mentioned by Jones (p. 807). The Security Council is therefore effectively blocked and it seems unlikely that the P5 will agree (whether accept or abstain) on referring the case to the Court.
Furthermore, the nature of the conflict is one that requires particular attention. If we are to assume that one of the three above conditions for the exercise of jurisdiction by the ICC are finally met, the nature of the conflict potentially limits the Court’s ability to adjudicate on some of the most pressing issues in the Syrian conflict, such as the use of chemical weapons. The nature of the conflict aims to distinguish between international armed conflicts (IAC) and non-international armed conflicts (NIAC).
Another issue is whether the case of Syria would be admissible before the ICC. This is especially significant because it can be argued that the case should fall under the jurisdiction of national courts; however, these courts cannot (or would not) try Assad. In addition, Syrian national courts do not have the mechanisms or proper institutions to try a person, let alone a leader, for the crimes that the Court would try him over. It could therefore be argued that national courts are unwilling or unable to put Assad on trial, giving the ICC its complementary jurisdiction. However, the question remains whether trying Assad in the ICC will be effective, considering that some issues within the ICC’s jurisdiction do not apply to NIACs and only apply to IACs (further discussed below). This is why it is important to first qualify the nature of the conflict before attempting to apply any laws that fall under IHL.
Qualification of the Conflict
An IAC should occur between two or more states. The conflict began with internal uprisings that were led by the rebel groups. In this scenario, only domestic law applied to the legality of this rebellion as well as international human rights law, where Syria is bound by some of its statutes such as the Convention on the Rights of the Child (CRC) among others. The events of the conflict then escalated in extensiveness and intensity classifying it as a civil war, which under IHL is considered a NIAC. However, the emergence of new actors and coalitions lead to the questioning of whether the conflict is in fact a NIAC.
Several opposition groups arose against the Assad government, some of which possess secular identities while others are more Islamic. Some of these opposition groups joined to form the National Coalition for Syrian Revolutionary and Opposition Forces, who claim to be the legitimate representatives of the Syrian people and are recognized as such by the Arab League and the Cooperation Council for the Arab States of the Gulf (CCASG). Also, the emergence of the Islamic State of Iraq and Syria (ISIS) as a coalition claiming its de facto statehood leads to the necessity of qualification. In reality, claims and recognition are not enough to create a state. According to the Montevideo Convention, the criteria of statehood are the following: possessing (1) a permanent population, (2) defined territory, (3) an effective government, and (4) the ability to enter into relations with other states. The number of states that recognize the state in question often defines the fourth condition. But, this condition is not sufficient enough to call any of the opposition groups a separate state. Therefore, the Syrian opposition group is not considered a state and the conflict is effectively a civil war, and therefore a NIAC.
In reference to CIL, “the principles of distinction and proportionality are held to apply in a NIAC” meaning that under CIL, it is important during an internal conflict that the state adheres to discrimination between civilians and combatants. It should also ensure that the attacks against the rebel groups are proportional under IHL. Because these principles are part of CIL, Syria is obliged to adhere to them.
Looking at Common Article 3 of the Geneva Conventions, to which Syria is a State Party, the provision briefly discusses the required treatment of non-combatants, which include any person who has laid down their arms, and prohibits certain actions against them. It does not specifically regulate the principle of discrimination or the conduct of armed groups in a non-international armed conflict. Syria is therefore obliged under international law to adhere to Common Article 3.
AP II was made as an extension to the regulations of NIACs due to the fact that Common Article 3 did not suffice in protecting civilians in non-international armed conflicts. AP II discusses the importance of discrimination and humane treatment towards victims of NIACs. However, it is important to note that Syria is potentially not bound by AP II. According to Article 1(1), there are two conditions for Syria to be bound by AP II. Firstly, Syria must be a party to the Protocol through signing and ratifying it, which it has not done. Being a signatory of the Geneva Conventions does not automatically mean that Syria also becomes a party to Protocol II. Secondly, the rebel groups acting within Syria must exercise control over part of that territory. Both of these conditions must be present for the Protocol to take effect. It can be argued, as mentioned by BBC, that the rebel groups in several situations have taken control of parts of Syria, such as in central Damascus where ISIS has exercised effective control in instances in the past three years. Regardless of this fact, the first condition was not met and Syria is therefore not bound by AP II.
Because Syria is not bound by Additional Protocol II, Assad’s regime is under no obligation to adhere to the specific provisions of discrimination outlined in AP II (although it must adhere to the principles of distinction under CIL) or the specific protection of noncombatants under AP II. Furthermore, being a NIAC, the Syrian conflict is only bound by Common Article 3 of the Geneva Conventions and CIL. Under Common Article 3, Bashar’s regime may be found guilty of not treating humanely those who are not actively participating in hostilities, although Common Article 3 does not specifically regulate the conduct of war. According to Al Jazeera, there were countless incidents between May 2012 and August 2013 where Bashar’s regime attacked towns and villages in Homs and Damascus without taking the necessary precautions in protecting noncombatants. However, there have been simultaneous attacks made by the rebels on the same towns and villages, making it difficult to determine who exactly was completely responsible for the bloodshed in particular situations.
Under the principles of CIL, Bashar’s regime may be found innocent of nondiscriminatory attacks due to the fact that the opposition groups began as civilians and eventually became deemed as combatants who take part in hostilities and have possessed arms, causing them to become eligible targets. They also do not wear insignia causing it to be difficult to discriminate between them and civilians. With regards to proportionality, United Nations Missions confirmed the rebels’ use of chemical weapons against the regime as well as civilians causing the most severe of actions taken by the Assad regime to become proportional to those used by the rebels.
It can, therefore, be argued that the Syrian conflict is a non-international armed conflict and is bound by customary international law and Common Article 3 within the Geneva Conventions. It is difficult to prove that the Assad regime is entirely responsible for any violations under these laws if they have allegedly committed any.
What is the significance of such a verdict? This verdict leads to the conclusion that under the mechanisms of international law, it is very well possible that a leader, who exercises violence against his largely civilian population, can be deemed innocent. It also means that there is no international mechanism to try a leader for gross violations of international law if the conditions of ICC jurisdiction are not met. Bashar Al Assad can be guilty of committing crimes against humanity or genocide had there been Court jurisdiction. Even so, the state is largely responsible for violations in other areas of international law.
It was also argued by Jones that due to the nature of the conflict, it being a NIAC, some of the Rome Statute provisions that address the use of chemical weapons do not apply to NIACs (p. 809), causing there to be a deficiency in international mechanisms to govern NIACs. In addition to this, although there are several treaties that theoretically oblige each party to the conflict to adhere to international law principles (p. 37), including CIL, it is difficult to practically bind non-state actors making it almost impossible to hold the opposition groups legally accountable for their conduct during the conflict.
Bashar’s government has also violated the principle of discrimination simply because they have the ability to pinpoint the camps and targets of the opposition yet choose to target areas with civilians. Amnesty International had released reports documenting the Assad regime’s purposeful targeting of medical workers and journalists. They have also shown considerable evidence that government intelligence conducted investigations on the whereabouts of the opposition groups, yet have still been bombing cities and villages where civilians lie.
There is also a clear violation of Common Article 3 where, according to the Human Rights Watch, there have been arbitrary arrests, disappearances, torture, and deaths of civilians, including women and children, conducted by the Assad regime. Yet there are arguments made that exonerate the Assad regime, as mentioned above.
Furthermore, the conditions under which Syria must be party to Additional Protocol II are unrealistic and ineffective. There are situations, such as this one, where it is imperative for AP II to apply considering the gross violations of civilian protection and conduct of war. These gross violations include that the regime has not exercised humane treatment against the combatants nor have they exercised proper protection of civilians, as mentioned by both Amnesty International and Human Rights Watch reports. However, considering that the treaty does not bind Syria, the Assad regime cannot be held accountable.
Although it can be argued that Assad is in violation of CIL, there is no mechanism to try Assad due to the reasons mentioned above regarding the Court’s jurisdiction. The use of chemical weapons alone is in a gross violation of the Chemical Weapons Convention, to which Syria is a State Party. There is also an international law principle that requires parties to avoid employing weapons calculated to cause superfluous injury and unnecessary suffering; however, this principle falls under the Fourth Geneva Convention that governs IACs, which does not apply in this case. However, according to the ICRC, this principle is considered CIL and applies to both IACs and NIACs, as per the International Criminal Tribunal on the Former Yugoslavia (ICTY).
The issue remains that there is no mechanism to try Assad for violations of customary international law. This shows that there are several situations of armed conflict where it is clearly logical that a person is guilty of committing crimes but the barriers of international law do not allow for his/her trial. There are also illogical grounds to exonerate a regime from being bound by laws that they should be bound by. The manipulation of international law could also potentially allow for his innocence. IHL is not so humanitarian after all.
To answer the first question, can IHL make Bashar Al Assad innocent? Yes it can. Is IHL therefore an effective mechanism of trying leaders in non-international armed conflicts? No, it is not.
Although the beginnings of the Arab Spring’s revolutions might seem similar, their evolutions are totally different; the Yemeni revolution is no exception. The situation in Yemen has recently evolved dramatically, leaving the state in a civil war. This leaves limited choices for the legitimate Yemeni president Hadi to seek foreign assistance. Based on the invitation by President Hadi, a Saudi Arabian-led coalition constituted of ten Arab states launched a military operation against the Houthi rebels known as “Decisive Storm”. Although the traditional “negative equality” doctrine of international law prohibits intervention in civil wars on either side of the parties, I argue in this post that there is no room for applying this principle in the Yemeni case for two reasons: first, I believe that the principle itself is no longer applicable in contemporary international law, second even if it is, the Yemeni case lacks the requirements for the application of this doctrine.
The principle of “negative equality” is no longer applicable
Recent state practice as analyzed by Dapo Akande & Zachary Vermeer here breaks with the general rule of non-intervention in civil wars. This state practice indicates that third states can lawfully intervene alongside with governments with or without the latter’s consent in cases of terrorist attacks. Examples include the French intervention in Mali based on an invitation from the Malian president which was reflected under UN SC Resolution 2085 which affirmed that assisting Mail is based on respecting its sovereignty. Other examples are the US led coalition against ISIS in Iraq and Syria backed by the Iraqi president’s invitation and the US intervention in Afghanistan in 2001 with no condemnation from the international community.
This practice has been further developed in cases that fit with the magnitude of human tragedy to fall under a broader concept of R2P without any invitation. Examples include the intervention in Iraq known as “Desert fox operation in 1998, Kosovo in 1998, Georgia in 2008, Libya in 2011, and the recent intervention in Iraq to rescue the Yazidis in 2014.
The principle of negative equality does not apply in Yemen.
The principle of negative equality lacks the basis for application in the case of Yemen. First, tracing the history of the principle and the reasons behind it proves that it is driven by the necessity to limit intervention by superpowers in order to pave the way for exercising self-determination by the opposition when they seek it. In addition, according to IDI Res 1975, if a foreign state unlawfully intervenes with the rebels, it allows a third state to lawfully intervene alongside with the government. Finally, the effective control test might not be the sole test for deciding the legitimacy for presidents in contemporary international law.
The principle of non intervention in civil wars is a purpose–based norm that seeks to guarantee peoples the right to exercise self determination as expressed in the UN Human Rights Covenants of 1966 and in GA resolution 2625 (XXV). In the context of civil war, peoples should have the right to choose their own governments without interference by third states, which was clear in the articulation of Art 1(a) of IDI Res 1975. According to the language of the article that describes rebels as “insurgent movements”, those rebels should be seeking self determination and to be supported by a significant part of the population, which was affirmed by M. Dietrich Schindler in his interim report presented at the IDI session in Rome in 1973:
“..assistance to the established government in case of civil wars … is illegal … when the insurgents, without having received any substantial assistance from abroad, succeed in establishing their control over a significant part of the territory and are supported by a large part of the population” (translated from French, emphasis added).
In addition, Georg Nolte and Doswald-Beck argue that third state intervention, even by consent, is unlawful if it is against the expressed will of a significant part of the population such as in uprisings which meet the requirements of the right to self-determination. By applying these criteria to the Houthis, although that they have effective control over a significant part of the territory, they are not supported by a significant part of the Yemeni population which does not represent an exercise of self-determination. To illustrate, although the religious sect (Zaydi) which most the Houthis are affiliated to, represent about one third of the Yemeni population, not all the Zaydis are supporting the Hountis.
One of the exceptions to the non-intervention in civil wars principle is the case of counter intervention as expressed in Art(5) of IDI Res 1975. To illustrate, if a foreign state intervenes on the side of the rebels in any of the ways expressed by the resolution which vary from military to financial to economic support, this gives third states the right to intervene on the side of the government. Therefore, the Iranian arming of the Houthis is considered unlawful intervention according to the ICJ judgment in Nicragua Case where the court considered arming the rebels as unlawful intervention. In addition, according to Hojatoleslam(a Shiite clerical rank just below that of Ayatollah and a representative of Supreme Leader Ayatollah Ali Khamenei to the Iranian Revolutionary Guard Corps (IRGC)), Yemen has become an area of their territorial hegemony, which was later affirmed by Ali Akbar Velayati, the foreign affairs adviser to Khamenei(and was further analyzed by Aliaa Makady here in this blog). In addition, there is a Yemeni evidence- based claim affirmed by Reuter’s investigations of the Iranian support to the Houthis with no official declared denial from Iran. Therefore, this triggers the lawful right of the Yemeni government to seek assistance from third states, which is what happened in the “Decisive Storm” operation by the Saudi Arabian led coalition.
Invitation by the president
After the adoption of the United Nations Charter, there has been a debate concerning the legality of intervention by invitation. Christine Gray, argues in her book “International Law and the Use of Force” that consent by the government does not legalize state intervention in a civil war with two exceptions either UNSC authorization or a counter intervention.On the other hand, Yoram Dinstein’s argument is that state practice, such as the French intervention in Mali or US airstrikes against ISIS in Iraq and Syria proves that consent by the government may legalize intervention. This position was affirmed by ICJ in the Nicaragua Case:
“…it is difficult to see what would remain of the principle of non-intervention in international law if intervention, which is already allowable at the request of the government of a State, were also to be allowed at the request of the opposition.”
Furthermore, there has been a debate over the existence of “effective control” standard over Yemen by the president Hadi in order to determine his capacity to consent for intervention. State practice shows that this standard is not always decisive; there are some cases in which the international community disregarded territorial effectiveness and replaced it with accepting the internationally recognized governments, such as Somalia and Libya.
To sum up, the situation in Yemen reached the edge of a civil war and the threshold of a human tragedy. However, there is no room for applying the principle of non- intervention in civil wars because state practice in the contemporary international law showed that it is no longer applicable. Second, even if we were to assume that this principle is still valid, there are three reasons to disqualify its application in the case of Yemen: first the “Decisive Storm” operation falls under a counter-intervention in response to Iran’s prior intervention on the side of the Houthi rebels. Second, the Houthis lack support by the Yemeni people, so there is no room for a claim of self determination, and finally, the effective control standard is no more the sole determinant of the legitimacy of presidents in having the capacity to consent to foreign interventions.