International Law and Armed Conflict (Syria version)
The International Committee for the Red Cross (ICRC) recently determined that the situation in the entire country of Syria can be classified as a non-international armed conflict. While this may not have been news to many watching events unfold there, what makes this statement interesting is that this position differed from the position advanced in May 2012 by then ICRC President Jakob Kellenberger. At that time, Kellenberger claimed that parts of Syria could be classified as an “internal” armed conflict, particularly in the area around Homs and in the Idlib district. The difference may appear inconsequential, but may in fact have some significant impact on the ground. The difference between whether an entire country is embroiled in a non-international armed conflict versus specific locations within that country has bearing on what constitutes a violation of international law. The two main bodies of international law relevant to armed conflict are international humanitarian law (IHL) and international human rights law (IHRL). IHL is the body of law which governs armed conflict and is only triggered when there is an armed conflict. IHRL generally applies in peacetime, although it can apply during war time as well. What is interesting about Kellenberger’s statement is that it is a departure from how IHL has traditionally understood territoriality within the context of non-international armed conflict. Traditionally, once fighting reaches the intensity threshold contained within the legal definition of non-international armed conflict anywhere within the territory of a state, international law considers IHL to apply to the entire state, even if that fighting is not widespread (assuming the other definitional requirements of non-international armed conflict have also been met). What this potentially new localized concept of non-international armed conflict does is enable the application of IHL to those areas of a country that meet these definitional requirements of armed conflict, while allowing IHRL to have priority in those areas of a country that do not.
While the ICRC later determined that IHL applies to the entire country of Syria, its earlier statements about Syria having a localized internal armed conflict raise perplexing questions and generated interesting discussions (for more detailed legal analysis of the relevant issues see here) about the application of international law in armed conflicts. Are localized armed conflicts now a third category of armed conflict, distinct from the established categories of international and non-international armed conflicts? If so, what does the limited application of IHL mean for civilians on the ground? For example, for civilians in Syria, which body of international law offers more protection? States have more leeway in using lethal force against individuals under IHL, although IHL does offer civilians protections like the civilian immunity. The bar is much higher for the state use of lethal force against individuals under IHRL (essentially, lethal force is an option of last resort), yet IHRL violations tend to get less external attention than say war crimes and other such IHL violations. This heightened attention might have a deterrent effect. Furthermore, the international community’s relatively quick classification of Libya as an armed conflict compared to the drawn out debate on Syria raises interesting questions about how such legal assessments are made. One thing does seems clear: as the international community wrangles with how to classify what is happening in Syria, people continue to be killed in that country, suggesting violations of various bodies of international law.