In case you missed it, the US and Russia brokered a “cessation of hostilities” arrangement for the war-torn county of Syria that went into effect last Saturday, February 27. In theory, the arrangement applies to any party “currently engaged in military or paramilitary hostilities against any other parties other than ‘Daesh’, ‘Jabhat al-Nusra’, or other terrorist organizations designated by the UN Security Council.” As such, the ceasefire includes among others, Syria, Russia, pro-Assad groups, and various rebel groups. An hour before it was due to take effect, the UN Security Council endorsed the ceasefire in Resolution 2268. The ultimate purpose of the arrangement is to provide a cooling space leading up to the restarting of UN-mediated peace talks scheduled for March 9.
Unfortunately, no matter how well-crafted on paper, in the real world ceasefires, on their own, don’t mark the end of armed conflicts, or, for that matter, the application of international humanitarian law (IHL, colloquially known as the law of war) which allows for considerably more violence than when law enforcement-centered international human rights law (IHRL) is applied outside situations of armed conflict. In effect, ceasefires don’t actually mean the violence stops.
Let’s look at the specifics of what all sides agreed to:
- To cease attacks against each other with any weapons, including rockets, mortars, anti-tank guided missiles, and aerial bombardments.
- To refrain from acquiring or seeking to acquire territory from other parties to the ceasefire.
- To proportionate use of force (i.e., no greater than required to address an immediate threat) if and when responding in self-defense to an attack.
- To full implementation of last December’s UN Security Council Resolution 2254, which, among other things, demands all parties to the conflict cease attacks against civilians and expresses support for the UN-monitored, Syrian-run free and fair elections to take place by 2018; and the readiness of all parties to participate in the UN-facilitated political negotiation process.
- To allow humanitarian agencies rapid, safe, unhindered, and sustained access throughout areas under their operational control and allow immediate humanitarian assistance to reach all people in need.
- All parties committed to work for the early release of detainees, particularly women and children.
- Any party can report a violation or potential violation of the cessation of hostilities to the attention of the Ceasefire Task Force.
The terms of this arrangement certainly aspire to bring an end to the conflict between the parties to who it applies. But, if there were a true and full cessation of hostilities in Syria, the media wouldn’t be reporting various breaches to the ceasefire and there would be no need for the monitoring component contained in the ceasefire. Simply put, the fighting would stop, which could then have important repercussions for the applicability of IHL.
Moreover, in the case of ceasefires in situations like the one in Syria where there are aspirations of peace talks on the horizon, there is a disturbing, but not surprising, history of warring parties demonstrating their strength by breaking the ceasefire prior to sitting at the negotiating table. With each side trying to gain an upper hand going into negotiations, they regularly demonstrate how hard they can hit the other should negotiations fail, take control of as much territory as possible, and position their forces in as many strategically valuable locations as possible. The International Criminal Tribunal in the former Yugoslavia (ICTY) pointed out, for example, that various temporary ceasefire agreements had been in place in the former Yugoslavia since 1991 and yet the “hostilities exceeded the intensity” required for the applicability of IHL.
There’s also the matter of groups such as ISIL (Daesh), Jabhat al-Nusra, and others not covered by the ceasefire. Violence by and and against them continues unabated, an issue I’ll also explore more below.
First, however, let’s explore when IHL is triggered via the outbreak of an armed conflict under international law.
Determining whether an armed conflict exists is done through an objective and fact-based assessment of the actions of the warring parties. Once an armed conflict exists, numerous rules of IHL kick in, including rules on use of force and detention, many of which aim to reduce civilian harm and suffering. IHRL also remains applicable, but sometimes in an amended form.
The threshold for entering a state-on-state war, or international armed conflict (IAC), is extremely low and fairly easily recognizable. In the past, states frequently denied being at war and sought to evade their obligations under IHL. To combat this, IHL now provides a low threshold for the existence of an IAC. The ICRC’s authoritative commentary on the matter explains:
Any difference arising between two States and leading to the intervention of members of the armed forces is an [international] armed conflict…even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, how much slaughter takes place, or how numerous are the participating forces; it suffices for the armed forces of one Power to have captured adversaries…. Even if there has been no fighting, the fact that persons covered by the Convention are detained is sufficient for its application. The number of persons captured in such circumstances is, of course, immaterial.
As for the end of IAC, according to Marko Milanovic, this happens when there is “a general close of military operations, with no real likelihood of a resumption of hostilities.” Sometimes this is easily recognizable, such as when two warring states enter into a peace agreement, cease hostilities, withdraw forces, and end military movements. Other times, such as when more than two states are involved or armed proxy groups are used by each side, it’s harder to know when the IAC ends.
Marking the end of IHL’s application after a state-on-state war ends can also be tricky. Many rules of IHL, such as those pertaining to the conduct of hostilities, go out of effect at the “general close of hostilities.” Other rules governing issues such as the right to detain prisoners of war end at the “cessation of active hostilities”; while others, such as humanitarian protections for individuals who remain deprived of liberty, continue after the end of the conflict; and finally others, such as training militaries in the rules of IHL, are always in effect, even during peacetime.
What about situations of non-international armed conflict (or NIAC) — like we see in Syria — where there are non-state armed groups fighting states?
In contrast to a war between two or more countries, the start of a NIAC is marked by sufficiently organized armed groups engaging in an intensity of hostilities that rises above internal disturbance such as riots or sporadic acts of violence. The ICTY has, for example, assessed the intensity requirement by looking at the seriousness, increase, and spread of clashes over territory and time; the distribution and type of weapons used; the level of deployment of government forces in affected areas; the number of casualties; the number of civilians fleeing the combat zone; the extent of destruction; the blocking, besieging, and heavy shelling of towns; the existence and change of front lines; and road closures.
Yet, thanks to IHL’s inexact language and the erratic nature of NIAC’s, some argue that such conflicts end when the above-mentioned entry threshold is no longer met, while others would say things aren’t that simple (see here and here). The latter focus on the historical fact that hostilities in NIACs often fluctuate below and above the required intensity threshold, thereby making it impractical to switch IHL on and off by the day. For this reason, they look for more permanent indicators of peace, more akin to what’s needed to end an IAC.
Let’s return to the issue of ISIL (Daesh), Jabhat al-Nusra, and other groups not covered by this ceasefire.
Even if the armed conflict between the parties to the ceasefire ended, an assessment would still have to be made about the organization and intensity of hostilities between states and groups like ISIL. If that fighting meets the threshold for a NIAC, then that armed conflict will remain in existence even if the conflict between the ceasefire parties ended. As a result, the parties to that conflict will remain bound by IHL.
There is also the fact that the US appears to be carrying out airstrikes against ISIL, Jabhat al-Nusra, and other terrorist-labelled organizations without Syria’s express consent, and the US has the clear intention to continue those strikes. This raises the matter of the US, and any other States doing the same, being in a separate IAC with Syria, an issue Dapo Akande has previously raised. Under these circumstances, the cessation of hostilities, even if it did take hold, would do nothing to end that armed conflict as long as Syria withholds its consent to the US’s strikes. Therefore, the states involved in that IAC would remain bound by IHL.
One might argue that Syria’s agreement to the terms of the cessation of hostilities could be interpreted as Syria’s consent to the US’s strikes since the terms expressly say they don’t apply to ISIL and the others. Moreover, at the adoption of UN Security Council Resolution 2268, Syria stated that “It had accepted the cessation of hostilities on the basis of continued military counterterrorism efforts against ISIL, Al-Nusrah Front and other terrorist groups affiliated with Al-Qaida, and in line with the Russian-American Joint Declaration, which it considered an important step towards a political settlement.” If that statement constitutes Syria’s consent, the US may have found a way out of an IAC that it was uncomfortable admitting it was a party to. If so, it means the US would be bound only by IHL’s rules for NIACs in Syria. If others have strong views on this, or know Syria’s formal position, it would be great to hear your thoughts.
International Humanitarian Law or International Human Rights Law?
Why does it matter from a legal standpoint if last week’s ceasefire could formally mark the end of the war?
If the terms of the cessation of hostilities actually marked the end of Syria’s armed conflict it would mean, among other things, that IHL’s rules on the conduct of hostilities would no longer apply — at least in relation to the parties who are no longer in an armed conflict with each other. Instead, only international human rights law and its focus on a law-enforcement approach would apply to the use of force. In practical terms, use of lethal force against one’s enemy as a means of first resort would be off the table and, instead, give way to the more stringent rules of IHRL.
The current ceasefire, in a manner, already recognizes the IHRL framework when it says the parties can only use “proportionate use of force (i.e., no greater than required to address an immediate threat) if and when responding in self-defense.” This notion of proportionality is more akin to what’s found in a traditional human rights and law enforcement approach, which primarily balances the amount of force used against the seriousness of the threat (i.e., threat to life). IHL, on the other hand, is less concerned about how much lethal force is used against the threat such as an enemy fighter, and primarily concerned about the amount of civilian harm the lethal force will cause.
All that being said, there have been widespread reports of IHL violations, including war crimes such as torture and the mass targeting of civilians and civilian objects, being committed by many sides. So, if states and non-state groups aren’t willing to apply the more permissive rules of IHL, what makes us think they would apply the more restrictive rules of IHRL or, for that matter, the domestic law. The hope, of course, is that the willingness to enter into a ceasefire agreement and the prospect of peace talks will reduce the amount of force both sides are willing to use against each other.
Finally, even if the cessation of hostilities takes lasting hold and the peace talks commence, it’s important not to forget the issue of accountability. The latest UN report on Syria, published February 2016, called on the Security Council to “[t]ake appropriate action by referring the situation to justice, possibly to the International Criminal Court or an ad hoc tribunal,” and underlined “the need for accountability with regard to major violations and support effective and accessible processes in this regard.”
The Ceasefire Task Force, while charged with the important role of receiving reports of ceasefire violations, should not however be mistaken as a replacement for international law’s requirement to hold accountable those responsible for violations of IHL, IHRL, or international criminal law under robust accountability mechanisms. Indeed, the terms of the ceasefire arrangement are unclear as to what the Task Force should even do when it receives reports of violations and its effectiveness remains equally unclear.