International humanitarian law distinguishes between international and non-international armed conflicts. International armed conflicts are defined by Article 2 common to the Geneva Conventions as follows:
all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties [states], even if the state of war is not recognized by one of them.
The Convention shall also apply to all cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.
Non-international armed conflicts are defined by Article 1 of Additional Protocol II, which developed and supplemented Common Article 3, as follows:
armed conflicts… which take place in the territory of a High Contracting Party between its armed forces and dissident armed forces or other organized armed groups which, under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.
Common Article 3 requires all parties to a non-international conflict to be bound by certain provisions concerning the humane treatment of all persons not taking an active role in the armed conflict, including combatants who have laid down their arms. Neither Common Article 3 nor Additional Protocol II apply to situations of “internal disturbances and tensions, such as riots, isolated and sporadic acts of violence and other acts of a similar nature.” These are not considered armed conflicts.
In a previous Naame Shaam report about the role of Iran in Syria, published in November 2014,1 the authors argued for treating the ongoing war in Syria as an international armed conflict that involves a foreign occupation by the Iranian regime and its militias and a liberation struggle by the Syrian people against this foreign occupation. The argument was based on the following observations:
1. The Iranian intervention in Syria has not been confined to supporting the Syrian government and its armed forces, which legal experts argue is not sufficient to render an armed conflict into an international one. The Iranian regime, especially Sepah Pasdaran (the Iranian Revolutionary Guards) has also been arming, training and directing irregular Syrian paramilitary forces (the shabbiha and the National Defence Forces, IDF), as well as Iran’s own paramilitary forces fighting in Syria (Sepah Qods and Basij) and all the Iranian-backed foreign militias that have assumed a leading role in major military operations in certain parts of Syria (Hezbollah Lebanon, the Iraqi militias and so on).
2. Other states (the US, Turkey, Saudi Arabia, Qatar, etc.) have also intervened in Syria on the side of Syrian rebels. They have all played a role in “organizing, coordinating or planning the military actions of a non-state armed group.” This, according to the ICTY judgment in the 1995 case of Tadić, among others, is sufficient to internationalise a conflict.
3. The Syria war is no longer geographically confined to the territory of Syria; it has occasionally and increasingly spilled over to other neighbouring countries, especially Lebanon and Iraq.
4. The Iranian and other outside interventions have not been solely directed at non-state armed groups and their military operations or infrastructure; it has also deliberately targeted and affected Syrian civilians and civilian infrastructure. This, according to experts, renders the conflict into an international one.
5. Vast areas of the regime-controlled parts of Syria are now under the effective control of the Iranian armed forces and the militias directed by the Iranian regime. This arguably amounts to a belligerent occupation, as defined by the 1907 Hague Regulations and the Fourth Geneva Convention.
6. The Syrian war could also be treated as an international conflict under Article 1(4) of Additional Protocol, I because it now involves people, represented by a recognised authority (the Syrian opposition umbrella groups), fighting against the “colonial domination and alien occupation” of the Iranian regime and its militias.
On the basis of these observations, the authors argued that the current war in Syria should be regarded as an international armed conflict or, at least, as both internal and international at the same the time. Alternatively, it could be treated as what is sometimes called “occupation with an indigenous government in post.”
Yet, even without it being recognised as such, international law governing armed conflicts should still apply to the Syrian case, as will be argued below, bearing in mind a few technical and legal issues, which will be addressed in the next section.
Considering that violations of international law governing armed conflicts in cases of conflicts of a non-international nature may also constitute war crimes is of relatively recent origin. It was the ICTY that first developed the concept of war crimes in times of non-international conflicts on the basis of customary international law, overcoming objections by member states on the basis of the state sovereignty argument when drafting the Geneva Conventions.
Two years later, the ICTR considered that violations of Article 3 common to the Geneva Conventions and Protocol II also fell under its jurisdiction (the conflict in Rwanda in the 1990s was generally regarded to be a non-international armed conflict within the meaning of Common Article 3 and Additional Protocol II).
This was ultimately codified in the Rome Statute, which also “applies to armed conflicts not of an international character, and thus does not apply to situations of internal disturbances and tensions, such as riots, isolated and sporadic acts of violence or other acts of a similar nature. It applies to armed conflicts that take place in the territory of a State when there is protracted armed conflict between governmental authorities and organized armed groups or between such groups.”
The Syrian conflict is clearly “protracted” – it has been going on since March 2011. “Organized armed groups” are defined, as already mentioned, in Article 1 of Protocol II as “groups which, under responsible command, exercise such control over a part of [the state’s] territory as to enable them to carry out sustained and concerted military operations and to implement this Protocol.” This clearly applies to the vast majority of the Syrian opposition armed groups fighting against the Syrian regime forces.
It is our argument, therefore, that the Rome Statue and all relevant case law and treaties, including the four Geneva Conventions and their Additional Protocols, should in principle be applied to the Syrian conflict. They should be applied particularly in light of the high unlikeliness that the Syrian and Iranian governments will ever be willing to initiate independent, impartial investigations and prosecutions that are not masquerades aimed at shielding the real culprits from criminal responsibility for the crimes in question (see Article 17 of the Rome Statute).
And we say “in principle” because these instruments can often only be applied if the conflicting parties have signed and ratified them. This is the subject of the next section.
Notes & References:
1. Naame Shaam, Iran in Syria, Chapter II, September 2014.