In a phone call today with a friend working on issues pertaining to the Responsibility to Protect (R2P), an interesting question arose. In particular, what types of conflict are going on with the fight against ISIS? My friend wanted to draw attention to the R2P aspects of the crisis, and whether the “intervention” on the side of the US was just according to these standards. While this is certainly an interesting question, I think it points us in the direction of a larger set of questions regarding the nature of the conflict itself. That is, what are the existing laws with which we ought to view the unfolding situation inside Syria? The complexity of the situation, while definitely a headache for strategists and politicians, is going to become equally difficult for international lawyers too. In particular the case has at least two different bodies of law at work, as well as laws pertaining to R2P crimes. Thus any action within Syria against ISIS, or Al-Qaeda, or Assad, or the rebels will have to be dealt with relationally.
Let us look to the case. Syria has been experiencing civil war for three years. Assad’s violations the rights of his people mean that he has manifestly failed to uphold the Responsibility to Protect Doctrine. R2P requires that states hold the primary responsibility to protect their peoples from genocide, ethnic cleansing, war crimes and crimes against humanity. Given Assad’s use of chemical weapons and cluster munitions, as well as targeting civilian populations, he has clearly committed war crimes and crimes against humanity. That Assad has employed the Shabiha, a private paramilitary force, to engage in killing means that he has also more than likely engaged in ethnic cleansing as well. In a perfect world, the Security Council would have acted in a “timely and decisive manner” to stop such abuses, and would have referred the case to the International Criminal Court (ICC) for prosecution. Of course, in May of this year, 53 countries urged the Security Council to refer the situation to the ICC. A mere two days later, Russia and China blocked the referral to the ICC by utilizing their permanent veto powers. Three years of bloodshed, civil breakdown, hundreds of thousands dead, and three million of refugees, it is too clear that there was no desire to intervene in the crisis. Thus we can say that there is an ongoing R2P crisis, and that Assad—as leader of the government of Syria—ought to be held to account for these acts. Moreover, there is a failure of the international community to live up to its obligations (as it voluntarily incurred under the 2005 World Summit Outcome Document).
The sheer destruction and violence inside Syria is what permitted the rise of ISIS. This seems an indisputable fact. The group capitalized on the civil war and breakdown, the tensions between and factionalization of the Syrian rebel groups, and the international community’s reluctance to engage Assad. Thus until ISIS pushed into Iraq, the international community would probably have let it be. Moreover, international law would have deemed the issue one of a non-international armed conflict. However, once ISIS set its sights on the Mosul Dam, the international community began to wake up.
With this act, ISIS transformed the non-international armed conflict into a two-dimensional one. In other words, it added an international dimension too. Thus as the fighting between the rebels and the Assad regime continued (and continues) to be a non-international armed conflict, but the fighting of ISIS in Iraq meant that ISIS-Iraq-Kurd conflict is international. If one doubts this reading, then it would have at least become a transnational armed conflict at the very least, but because ISIS targeted Iraqi infrastructure, it seems more likely that this single act transformed the conflict into an international one.
Now that the US and other regional powers have entered the fray, it is most definitely an international armed conflict – between ISIS and these states. However, we must still remember that the civil war between Assad and the various rebel fighters is also still ongoing (as well, presumably between ISIS vs. Assad). Thus there is still a non-international armed conflict here too. And, let us not forget, R2P and Assad!
What does this all mean? Well, in short it means that the only way to tell which set of laws applies is to look at the relation of the parties at any given moment. The casuistry here will become the all-important determining factor. For example, if the US trains and arms “moderate” Syrian rebels, one would have to look at the particular operation to determine which set of laws applies. Is the operation one undertaken in support or in concert with the US-led coalition against ISIS? Yes? Then international humanitarian law applies. Is the operation undertaken by these trained and armed rebels one against the Assad regime? Yes? Well, then this may or may not be a non-international armed conflict. The International Court of Justice, for instance, holds that in the case of third party intervention in support of a rebel group, the third party needs to have “overall control” of the rebel group for that conflict to be considered “internationalized.” Given the different rebel groups, this could become a daunting analysis. Is control of one sufficient to say it is for “all?” Or just this one group?
These little details matter because the law of international armed conflict is much more robust than the law pertaining to non-international armed conflict. As the International Committee of the Red Cross notes:
“Although the existence of so many provisions and treaties may appear to be sufficient, the treaty rules applicable in non-international armed conflicts are, in fact, rudimentary compared to those applicable in international armed conflicts. Not only are there fewer of these treaty rules, but they are also less detailed and, in the case of Additional Protocol II, their application is dependent on the specific situations described above.”
In other words, there are gaps in the protection of rights, persons, property and the environment relating to non-international armed conflict that do not exist in international humanitarian law (i.e. international armed conflict). Thus the case of ISIS challenges the international community in more ways than one. It is not that there are not laws applying to these conflicts, but that the conflicts are so convoluted that the states and parties to this conflict, as well as potential international prosecutors, will rely on so much more circumstantial evidence to sort out the details about what is permissible and when. This, however, is not something likely to happen ex ante in targeting operations, training and arming. I fear that while there are overlapping jurisdictions of rules and laws here, the convoluted nature will engender an even greater realm of permissiveness and the parties to the conflicts will end up transferring more risk and harm to the bystanders. Civilians always suffer, to be sure, but the laws of war are supposed to mitigate that suffering. If the laws of war are convoluted because of the complexity of the actors and their relationships, then this will have greater deleterious effects on the lives and rights of noncombatants.