The question of when an armed conflict is underway for purposes of triggering the Geneva Conventions and other relevant law of war is not in principle difficult in the case inter-state international armed conflict. Any fighting between armed forces of states is automatically covered, irrespective of the level, intensity, or any other characterization of the fighting for other legal purposes. Non-international armed conflict has always been more problematic, because the situation of NIAC, particularly within the borders of a state against non-state actors, has to be distinguished from ordinary violence, riot, etc., that might not rise to meet some legal threshold of NIAC.
Customary law has gradually come to recognize that fundamental rules of war governing the conduct of hostilities apply to all conflicts, whether international or NIAC (and the US position appears to be that "fundamental principles" of the laws of war such as distinction and proportionality apply even in uses of force that might not constitute armed conflict as such). But that does not answer the question as to when violence, particularly within a single state, has reached the point where it should be regarded as an armed conflict to which these rules apply.
Syria (and Libya before it) raises many of these threshold issues. Two leading and prolific scholars of the laws of war, Laurie R. Blank and Geoffrey S. Corn, take up these questions in an important new paper on SSRN (slated to appear in Vanderbilt Journal of International Law in 2013, but this article very much bears reading now on SSRN), Losing the Forest for the Trees: Syria, Law and the Imperatives of Conflict Recognition. Here is the abstract:
Since the advent of the 1949 Geneva Conventions, the international community has steadily expanded and reinforced the application of the law of armed conflict to these situations to regulate state and opposition conduct during such conflicts for the clear and imperative purpose of protecting the victims of these hostilities. Today, it is simply axiomatic that the law of armed conflict regulates the conduct of hostilities and the protection of persons during all armed conflicts, whether inter- or intra-state. As important as this development has been for limiting the suffering associated with war, it is equally axiomatic that the LOAC plays no role absent a situation that rises to the level of armed conflict. Accordingly, the increasingly robust package of international humanitarian protections the law mandates are not triggered if the facts on the ground do not support an objective determination of armed conflict.
The current situation in Syria holds the potential to become a pivotal moment in the development of this law. The ongoing brutality reminds the world of the importance of extending international humanitarian regulation into the realm of non-international armed hostilities; however, the very chaos produced by those hostilities reveals critical fault lines in the current approach to determining the existence of an armed conflict. Most people, if asked to describe what is happening in Syria, would use terms such as civil war or something comparable. Indeed, it is almost incomprehensible that those caught up in the chaos – government soldiers, dissident fighters, innocent civilians, journalists, foreign observers – would seriously question the assertion that they were involved in a “war”. And yet the international legal discourse evinces a clear reluctance to acknowledge the existence of armed conflict. Rather, the international community speaks of massive human rights violations, repression, even massacres – but not war or armed conflict. This reluctance highlights a clear disparity between the object and purpose of the law of armed conflict and the increasingly legalized and formalistic interpretation of the law’s triggering provisions. This is especially discouraging in light of the motivation for adopting the “armed conflict” trigger: mitigate the impact of technical legal formulas when determining the applicability of humanitarian protections.
Focusing on the events in Syria, this article will critique the overly technical approach to the definition of non-international conflict — based on the Tadic framework of intensity and organization — that is currently in vogue and how this approach undermines the original objective of Common Article 3. The impact of this “elements” approach is apparent in a recent report by the United Nations Commission of Inquiry for Syria. In stating that the situation in Syria is not an armed conflict, the Commission of Inquiry explained that the opposition parties in Syria were not sufficiently organized as to satisfy these elements. The effect is that the world is witnessing a retrograde of international humanitarian efficacy: Syria appears to be a lawless conflict like those that inspired the adoption of Common Article 3; one in which the regime employs its full arsenal of combat capability to shell entire cities and neighborhoods at will, block the provision of humanitarian assistance, and target journalists and medical personnel directly. The law of armed conflict is specifically designed to address exactly this type of conduct. Human rights law, which applies in the absence of an armed conflict, simply does not contemplate such massive uses of military power and therefore does not contain, for example, an obligation for states to allow access for humanitarian relief organizations or a prohibition on targeting medical personnel.
In the first section, this article will analyze the object and purpose of the law of armed conflict with respect to non-international armed conflicts and will highlight the goals of the drafters of the Geneva Conventions in establishing a pragmatic triggering mechanism for the application of the law. In particular, this section will demonstrate why a broad conception of non-international conflict is essential to contain brutality historically endemic during such conflicts. The second section will utilize the same approach with respect to the specific factors the International Tribunal for the former Yugoslavia set forth in the Tadic case: intensity and organization. Rather than a technical set of elements and checklists, these factors should serve as a conceptual guidepost for a totality of the circumstances assessment of the existence of non-international conflict and how to distinguish these situations from lower level types of violence that do not trigger the law of armed conflict, such as riots and internal disturbances. The object and purpose of the law forms a key framework for defining intensity and organization, for understanding how they relate to each other and combine to manifest an armed conflict, and for recognizing how other factors, such as the government’s response, affect our perception of intensity and organization. Together, these two layers of analysis will demonstrate the need for a conceptual – rather than technical – framework guided by the object and purpose of the law. The current discourse on Syria highlights the dangers of allowing over-legalization to override – and undermine – logic, with the obvious deleterious impact on human life.