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Untangling the Web of Actors in Syria and Additional Complexities of Classifying Armed Conflicts

As the international community struggles to find solutions to the humanitarian crisis in Syria, several recent posts at Just Security and elsewhere have offered interpretations of international law that aim to provide greater protections for civilians and open up new opportunities for holding accountable those responsible for the daily suffering we see in the news.

But for a situation as complicated as Syria, considerable analysis is required to determine just what types of armed conflicts exist there and what laws apply. Essentially, we have to disaggregate the situation to see clearly who the various actors are and what their relationships are to the hostilities. (Let’s call this the “rule of disaggregation.”) When you don’t apply this rule —and I’m not suggesting any of the contributors I mention in this post have made this mistake—it is much harder to see what international law can offer. And yet, on the other hand, as James G. Stewart recently explained, disaggregating a conflict makes it much harder to sort out how to apply the law and to what actions exactly. 

One solution that has been proposed is to say that US attacks against organized armed groups such as ISIL and Jabhat al-Nusra, when done without Syria’s consent, triggers an international armed conflict (IAC)—in other words, an armed conflict between two or more States. Ryan Goodman wrote that if the situation is an IAC: “Among other effects, it would help set in motion the Geneva Convention’s global war crimes enforcement regime.” Adil Ahmad Haque, with respect to civilian protection, wrote: “the treaty law of IAC is far more detailed and robust than the treaty law of NIAC [non-international armed conflict, which includes an armed conflict between a State and non-State armed groups].”

Some, such as Terry Gill, dispute the legal underpinnings of the claim that an IAC is triggered by attacks aimed at an organized armed group. Others, such as Deborah Pearlstein, Gabor Rona, and Kenneth Watkin also argue that classifying an armed conflict as “international” can bring about several negative consequences and may not be as beneficial as others contend.

But an additional point worth noting is that when we apply the “rule of disaggregation” to the situation in Syria we see that even if the US were to be bound to the rules of an IAC, not all of the Assad regime’s atrocities are necessarily bound by those same rules. Instead, some of Syria’s attacks may be bound by the international humanitarian law (IHL) of IAC and others by the IHL of NIAC. Acknowledging this reality is important because it will help push against mistakenly conflating actors and conflicts and, most importantly, it will ensure that claims for stronger civilian protection and accountability are based on solid legal analysis.

To explore this issue further and to keep this discussion focused on Syria, let’s make the following stipulations: 1.) The US is carrying out attacks against organized armed groups in Syria without Syria’s consent (e.g., ISIL and Jabhat al-Nusra). 2.) Syria is fighting those same organized armed groups. 3.) Syria is also fighting organized armed groups that are working with, or supported by, the US in counter-ISIL/al Nusra operations. 4.) The hostilities between Syria and each group that Syria is fighting each reach the level of a NIAC and the same is true for the US. 5.) The situation in Syria is far more complicated, but let’s keep things as simple as possible for the moment.

NIAC v. IAC

If the US attacks against either ISIL or al Nusra don’t trigger an IAC but they are part of a NIAC (as stipulated above), then the US and the organized armed group under attack would be bound by the IHL of NIAC. (The US would also remain bound by the extraterritorial application of International Human Rights Law (IHRL).) Similarly, if Syria’s hostilities between either ISIL or al Nusra amounted to a NIAC (as also stipulated above), then all parties involved in those hostilities would be bound by the IHL of NIAC. (Syria would also remain bound by IHRL.) In essence, there could be up to four distinct NIACs (US v. ISIL / US v. al Nusra / Syria v. ISIL / Syria v. al Nusra) and the IHL of NIAC would apply to them all. That said, under the right legal conditions some of these NIACs could merge. This might be politically awkward to say the least, but not legally impossible.

Let’s now analyze in which situations the IHL of IAC might apply and how that would impact other parts of international law.

If, as the ICRC and others suggest, a US attack on an organized armed group without the territorial State’s consent is enough to trigger an IAC between the US and Syria, then the IHL of IAC would (along with IHRL) regulate the very first US attack and all subsequent US activities associated with the IAC (even if those activities are not directed against the Syrian government). This being the case, even if US attacks against an organized armed group don’t cross the NIAC threshold, the US is bound by the IHL of IAC.*

Now, what happens if the US attacks trigger an IAC but, as stipulated, are also part of a NIAC?

A common sense approach might be to say that the IHL of IAC applies to the IAC (along with IHRL) and the IHL of NIAC applies to the NIAC (along with IHRL). Simple enough right? As explained above, the problem with this seemingly axiomatic approach is that it ignores the implication that the IHL of IAC attaches itself to any and all US hostilities, and associated activities, aimed against ISIL or al Nusra when done without Syria’s consent. In a manner of speaking, the IHL of IAC applicable to the US would overshadow the IHL of NIAC that would otherwise have been applicable to the US’s NIAC. For example, any person who the US detains in relation to its armed conflict in Syria would have to be treated under the rules of IAC. What’s deeply odd about this result is that the organized armed groups, which are in a NIAC with the US, would appear to remain bound by a different set of international rules (i.e., the IHL of NIAC). Nonetheless, Dapo Akande put it best:

“With respect to the conduct of hostilities and targeting in general, every act of targeting by the foreign State will not only be an attempt to target the non-state group (or members thereof) but will also at one and the same time be a use of armed force against the territorial State because it is a use of force on that State’s territory without its consent. This means that every act of targeting or opening fire must comply with the law of international armed conflicts.”

But is the same true for Syria? Are all of the Assad regime’s attacks now also bound by IHL’s rules for IAC?

To be sure, there are clear examples where Syria would be bound by the IHL of IAC. The first, and most obvious example, is if Syria were to respond to a US attack with counterattacks or by detaining, say, a downed US pilot. In this scenario, Syria’s attacks would be regulated by the IHL of IAC and Syria would be required to treat the pilot as a captive under IAC rules. If Syria were to attack an armed group that was a de facto part of US forces, or otherwise closely enough linked with the US’s use of non-consensual force on Syrian territory to become a party to the IAC, this too would bind Syria to IHL’s IAC rules. The same would be true for Assad’s attacks on civilians and protected objects associated with that IAC.

However, it cannot be said that the US-Syria IAC necessarily means that the IHL of IAC regulates all of Syria’s attacks on its territory, including attacks on civilians and civilian objects. Despite wanting a strong protective legal regime for civilians and protected objects, I’m hard pressed to see why the IHL of IAC would apply to Syria’s attacks unless they are aimed at the US or in any other way associated with the US’s non-consensual activities on Syrian territory (i.e., the IAC).

I say this knowing that my conclusion leads to some unsavory results. For one, IHL’s more robust set of treaty rules that seek to mitigate civilian suffering wouldn’t apply to Syrian activities unassociated with an IAC. Instead, Syria would be bound to the IHL of NIAC. Perhaps some solace can be had in the fact that several IAC rules that protect civilians now apply to NIAC as a matter of customary international law. Secondly, while US transgressions of IHL would fall under the gaze of the IAC criminal liability regime, the same might not be true for all of Syria’s transgressions.

I also recognize that the rule of disaggregation makes it a particularly messy task to apply international law to armed conflict. At the same time however, while it might be extremely difficult to figure out which civilian killings are linked to which conflicts, attacks against civilians and protected objects can simultaneously be associated with different armed conflicts. Making legal and factual arguments to show where overlaps exist may therefore prove critically important for advancing arguments in favor of greater civilian protection and accountability. But again, the important point is that it’s useful first to disaggregate the situation in Syria before merging actors, hostilities, and law.

*To be sure, this legal analysis isn’t great news for those of us who see the sole application of IHRL as a more protective legal regime for civilians than its application alongside IHL. On the other hand, for those concerned with ameliorating civilian suffering but who disregard or object to the notion that IHRL, or certain parts of IHRL, apply extraterritorially during wartime, IHL’s humanitarian rules for IAC would likely be welcomed compared to no rules at all.

But, to be certain, there are innumerable authoritative and credible legal decisions and opinions that make it clear that IHRL does apply extraterritorially and during armed conflict. And over the past decade legal clarity is emerging as to how exactly IHRL applies in these situations. In this environment, the notion that “no rules apply,” should at the very least always be caveated as the view of a particular State (or one part of a particular State), and not passed off as a generally accepted view.

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About the Author

is Legal Officer, National Security and Counterterrorism Program, at the Open Society Justice Initiative. Follow him on Twitter (@J_T_Horowitz).