Relationship between LOAC and IHRL

The War in Syria and LOAC: Some Key Issues

By Robert Chesney
Sunday, July 15, 2012, 4:42 PM

[Update: a responsive post from ICRC's Daniel Cahen is here, and ones from Kevin Heller and Gabor Rona are here and here]

Many papers and sites are today highlighting the fact that the ICRC has stated publicly that circumstances in Syria in general (as opposed to a few localized hotspots) constitute armed conflict, subject to LOAC/IHL.  More specifically, the ICRC has labeled the situation as a non-international armed conflict extending throughout Syria’s borders wherever the parties may engage in hostilities.   This leads me to five preliminary observations, including some points that are simply interesting and some that should be the focus of careful consideration by U.S. government lawyers:

1) The Legal Geography of War:  The ICRC’s past and present approach to Syria, as noted above, 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.  For the larger context of why this abstract topic matters, the must-read piece is here, by Ken Anderson.

2) Whom Can the Assad Regime Legitimately Target?  The Syria scenario provides yet another instance in which it matters a great deal whether LOAC/IHL should be understood to encompass a category of persons associated with the non-state party who may be targeted based on status rather than solely while they are currently directly participating in hostilities.  In that respect, the U.S. government has, most awkwardly, a dog in this fight so to speak.  I say awkward because U.S. officials no doubt have zero interest in saying or doing anything that would smack of sympathizing with, let alone defending, Assad regime actions.  I say dog-in-this-fight-so-to-speak, however, because the U.S. government certainly does have an interest in the abstract legal claim that status-based targeting is proper in a NIAC for some category of enemy personnel (as well as a stake in what that category should be defined to be).  When questions arise regarding which attacks by the Assad regime might constitute war crimes along the dimension of the principle of distinction, the U.S. government thus may find itself in quite a bind; it will be tricky to stay appropriately critical of the Assad regime while standing firm for legal principles that have much broader applications.

3) At What Point Does Not-So-Covert Support for the Rebels Internationalize this NIAC?  The ICRC statement declares the conflict to be a NIAC, and I think that is correct.  But I’m mindful of the very public accounts circulating about states shipping arms and providing intelligence to the rebels, and note that this calls for consideration of a long-running topic:  at what point does such assistance effectively internationalize the conflict?  Interesting food for thought on that abstract question of conflict typology here.

4)  The Relevance of the ICRC’s Endorsement of a Particular View:  It is worth noting that some media accounts of the ICRC’s pronouncement are treating the ICRC as the dispositive arbiter of the question of whether and when LOAC/IHL applies, or at least write with that implication woven into the piece.  See here, for example.  While I am an admirer of the ICRC, it is important to note that its views on such questions—though obviously of great diplomatic importance and certainly worthy of serious and respectful consideration—are not legally dispositive or binding.  The argument for application of LOAC/IHL in Syria has been strong for some time prior to the ICRC’s formal announcement, and would continue to be strong today even if for some reason the ICRC had not made its announcement.

5) IHRL's Continuing Relevance?  The Reuters report on the ICRC's public statement includes this interesting passage:

In areas of Syria which are outside of the hostilities but also hit by violence linked to civilian demonstrations, international human rights law - which bans extrajudicial executions, torture and arbitrary arrests - continues to apply, according to the agency.

This passage nicely encapsulates a vexing issue that can come up in just about any armed conflict: what body of law to apply when it comes to factual circumstances that appear at first blush to be relatively far-removed from the hostilities themselves, such as demonstrations, checkpoint incidents, and so forth when they arise in areas that have not recently been the subject of hostilities.  These issues can be difficult even with perfect information; in actual practice, of course, one does not have perfect information (i.e., one does not know with certainty that the rioting protesters or the fast-approaching car do not directly involve opposing forces), making things that much harder.

Needless to say there are many more issues that arise under the heading of LOAC/IHL as applicable to Syria.  I did not mention proportionality concerns above, for example, though that is an area of LOAC/IHL that certainly seems to be at issue with respect to the Assad regime's uses of force.  There are plenty of others to discuss as well.