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.
- The Applicable Law
Thus under IHL, a civil war constitutes a non-international armed conflict, where IHL does not apply in its entirety. The applicable laws under a NIAC are limited to (1) customary international law (CIL) regarding NIACs, (2) Common Article 3 in the Four Geneva Conventions of 1949, and (3) Additional Protocol II of the Four Geneva Conventions.
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.