Last week, I wrote two posts at Just Security (here and here) on one of the legal consequences that would follow if the situation in Syria is an “international armed conflict” (e.g., a war between States). While there might be an array of legal effects that would be triggered by an international armed conflict, I have focused on provisions of the 1949 Geneva Conventions and Additional Protocol I that require States to apprehend suspected war criminals who pass through their territory and initiate criminal proceedings against such individuals. That dramatic effect is special to international armed conflicts, and does not apply to non-international armed conflicts (e.g., wars between State and non-State actors). That’s the legal part of the analysis. As a policy matter, I contend that the obligation on States (and thus the constraint on national-level prosecutors and courts) to exercise jurisdiction could add another tool to diplomatic efforts to confront Syrian and Russian officials for some of the ongoing war crimes in Syria.
A post by Professor Dapo Akande over at EJIL Talk today brings to mind another important element in this equation: the potential for official immunity from prosecution. One of the important insights in Dapo’s analysis is that an international armed conflict under the 1949 Geneva Conventions (and Additional Protocol I) would also have the effect of denying immunity to Syrian and Russian officials in national court proceedings. The same cannot be said as unequivocally for non-international armed conflicts. He writes:
“[R]elated to the point on universal jurisdiction , the argument that there is no immunity for state officials who commit international crimes is strongest in cases where there is a treaty which sets out the crime, applies it to state officials and requires other states to prosecute [the argument used by the English House of Lords in the Pinochet case]. As Sangeeta Shah and I have pointed out, the Pinochet argument, by which I mean, the narrow argument that in some cases there is conflict between the prior customary rule according immunity and more recent treaties permitting the exercise of foreign jurisdiction over state officials is equally applicable to grave breaches provisions of the GCs. So whatever else we may think of immunity for international crimes, it seems hard to maintain immunity in cases covered by grave breaches provisions in an IAC [international armed conflict]. My own view is that there is no immunity also with respect to international crimes in NIACs [non-international armed conflicts] but not everyone is persuaded by that.”
Dapo’s post catalogs several other important legal matters that turn on whether an armed conflict is classified as international or non-international. It’s an excellent analysis.