Daniel Cahen, the Legal Advisor to the ICRC's Regional Delegation for the United States and Canada, responds to my original post on Syria/LOAC with the following guest post:
The publication of an interview about Syria given by my colleague Hicham Hassan on July 14 has triggered an interesting discussion between Bobby and Kevin, in particular with regard to the geographical scope of this NIAC. I am grateful to Lawfare to allow me to guest post and provide a brief insight about the ICRC's legal classification approach regarding this specific situation.
Because of its responsibilities vis-à-vis IHL/LOAC the ICRC takes great care when it comes to analysing a situation on the ground with the aim of determining the applicable legal framework. As one of the only humanitarian organizations with a significant field presence in Syria and in light of the degradation of the situation, the ICRC has indeed determined that the NIAC threshold has been reached. This was done a few months ago and in relative discretion, as we do not systematically make legal classifications public and privilege a direct dialogue about the application of IHL/LOAC rules with the Syrian Government and armed opposition.
The classification criteria used by the ICRC when assessing whether Syria or any other situation of armed violence has degenerated into a NIAC are the intensity of the violence and the level of organization of the parties involved. We do not view the duration or the "protracted" character of the violence (to use the language of international criminal jurisdictions) as a third and independent criteria, but rather as a component of the intensity criteria. In addition the political motivation of the conflicting parties---as opposed for instance to a purely criminal agenda---does not play a role in the classification. The definitions, criteria and indicators used by the ICRC for conflict classification purposes are described in more details in an official position paper ("How is the term armed conflict defined in international law?").
No "localized NIAC"
It seems that the mention of Homs, Idlib and Hamain the public communication of the ICRC has been a source of puzzlement. It has been interpreted---wrongly---as giving rise to a new category of "localized NIACs". In truth, there is nothing new in the legal approach of the ICRC regarding Syria. As a matter of legal principle, when a NIAC between two or more parties occurs, the geographical scope of application of IHL/LOAC covers the whole territory of the affected State. Hostilities between parties to the Syrian NIAC are governed by IHL/LOAC wherever they may take place inSyria, and the safeguards afforded to persons deprived of their liberty in relation to the NIAC kick in regardless of the location of the detention facility. It is therefore not entirely accurate to state as Bobby did that "the ICRC’s past and present approach to Syria (…) emphasizes the notion that LOAC/IHL comes online only in relation to specific geographic locations rather than tracking the location of the forces operating on behalf of the parties to the conflict". In situations of collective hostilities opposing identifiable units, IHL/LOAC clearly applies even to engagements taking place away from the main battlefields (think for instance of a one-off attack launched against a military installation or troop convoy in a location with no prior history of military confrontations).
But it certainly gets more complicated when one contemplates the targeting of isolated individuals taking place outside of the active battle zones. Kevin's proposition that in Syria "IHL permits a state to target anyone who participates in that conflict regardless of location, as long as they are exercising a continuous combat function in an organized armed group involved in the conflict or are directly participating in hostilities there" should in the view of the ICRC be nuanced. Within the territory of the country where the NIAC is taking place---and this is a hotly debated issue---the resort to lethal force under the IHL/LOAC principle of military necessity may not always be acceptable depending on the surrounding circumstances, taking also into consideration the restraints imposed on specific means and methods of warfare, and without prejudice to further restrictions that may arise under other applicable branches of international law, (ICRC's "Interpretive Guidance on the Notion of Direct Participation in Hostilities under IHL").
I believe that the reason why my colleague insisted on particular flashpoints of armed violence such as Homs, Idlib and Hamawas to indicate that IHL/LOAC is not the only legal framework applicable in Syria. Civilian protests still continue in Syria and it is certainly worth recalling that measures taken in relation to civilian demonstrators must comply with the least harmful paradigm found in the International Human Rights Law standard governing the use of force in law enforcement operations.
Why talk about the armed conflict ?
Last, Bobby is entirely right when he writes that the ICRC's views on IHL/LOAC applicability are not "legally dispositive or binding". There are even times when the ICRC will keep its legal conclusions silent for fear of endangering its access to affected populations. But the ICRC chose to share its classification in this instance to publicly remind all parties to the conflict of their legal obligations, especially the obligation to take constant care to spare the civilian population from the effects of hostilities.
This is all quite helpful and interesting. I thank Daniel and the ICRC, as well as Gabor and Kevin in their earlier replies, for weighing in!