Syria - Applicable international law
 
 
 
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Applicable international law
 

Legal qualification of the armed violence in Syria: a non-international armed conflict

The extent and sustained nature of armed violence, and the level of organization of the non-state armed groups fighting against the Syrian regime, mean that the RULAC believes that the situation across Syria is an armed conflict of a non-international character. A similar assessment has been made by the International Committee of the Red Cross (ICRC).

In June 2012, UN Under-Secretary-General for Peacekeeping Operations Herve Ladsous stated that the situation in Syria could be called a civil war. The same month, the latest report by the Independent International Commission of Inquiry on Syria, which was set up by the UN Human Rights Council, was more conservative, stating that the violence in some areas "bears the characteristics of a non-international armed conflict." 

Previously, armed conflict had been limited to a relatively small and distinct number of areas. In early May 2012, the President of the ICRC declared that the violence in at least two places had reached the threshold of an armed conflict of a non-international character governed by international humanitarian law. Jakob Kellenberger said that conflict in Homs and the province of Idlib met the three criteria of a non-international armed conflict: intensity, duration, and the level of organisation of rebels fighting government forces.

According to the November 2011 report by the Independent International Commission of Inquiry on Syria:

The commission is concerned that the armed violence in the Syrian Arab Republic risks rising to the level of an “internal armed conflict” under international law. Should this occur, international humanitarian law would apply. The commission recalls that the International Court of Justice has established that human rights law continues to apply in armed conflict, with the law of armed conflict applying as lex specialis in relation to the conduct of hostilities.

The Commission of Inquiry documented patterns of summary execution, arbitrary arrest, enforced disappearance, torture, including sexual violence, as well as violations of children’s rights by the Syrian regime and was "gravely concerned that crimes against humanity have been committed in different locations in the Syrian Arab Republic."

By February 2012, the Commission of Inquiry had reported that Syria was "on the brink" of a non-international armed conflict:

International humanitarian law is applicable if the situation can be qualified as an armed conflict, which depends on the intensity of the violence and the level of organization of participating parties. While the commission is gravely concerned that the violence in certain areas may have reached the requisite level of intensity, it was unable to verify that the Free Syrian Army (FSA), local groups identifying themselves as such or other anti-Government armed groups had reached the necessary level of organization.

In June 2012, the UN Secretary-General published a report on the situation of human rights in Syria, which stated, inter alia, the following (UN doc. A/HRC/20/37 of 22 June 2012, §14):

Violence and killings, including during armed clashes, continued throughout the country. An increase in the use of explosive devices, inflicting loss of life among civilians, was also reported. Credible reports indicated that Government security and armed forces continued, unabated, to commit serious violations of human rights, including by the shelling of civilian areas and the use of lethal force against demonstrators, arbitrary arrests, torture and summary and extrajudicial execution of activists, defectors and opponents. Furthermore, ongoing violations by armed anti-Government forces continued to be reported, including cases of kidnapping and abduction, and the torture and killing of members of the security and armed forces and pro-Government elements.

Applicable law

International humanitarian law

Applicable to all parties to the conflict, state and non-state actors:

Common Article 3 to the 1949 Geneva Conventions;
Additional Protocol II ; and
Customary international humanitarian law applicable to a NIAC.

The threshold for the application of 1977 Additional Protocol II is higher than for common Article 3, but given the effective control of certain territory by non-state armed groups and their level of organisation, it is believed that this threshold has been reached in (see the RULAC paper on the qualification of conflicts under international humanitarian law for further details of the requirements for application of these instruments). Syria is not, hiowever, a party to 1977 Additional Protocol II so its provisions are not directly applicable.

International human rights law

Syria is bound by both applicable treaty and customary human rights law (see the RULAC papers on the interaction between international humanitarian and human rights law in armed conflict; and Derogation from human rights treaties in situations of emergency).

  • Non-state actors

There is increasing acceptance that armed non-state actors are also bound by at least customary norms of international human rights law. This would cover the armed groups in Syria. Thus, the UN Assistance Mission in Afghanistan stated in February 2012 that:

While non-State actors in Afghanistan, including non-State armed groups, cannot formally become parties to international human rights treaties, international human rights law increasingly recognizes that where non-State actors, such as the Taliban, exercise de facto control over territory, they are bound by international human rights obligations. (See UN Assistance Mission in Afghanistan (UNAMA), Annual report, February 2012 at p. iv.)

International criminal law

Syria is not a party to the Rome Statute , and therefore the International Criminal Court may not exercise jurisdiction over war crimes alleged to have been committed by on its territory unless the situation is referred to the Court by the UN Security Council.

The 1998 Statute of the International Criminal Court (Article 8(2) (c) and (e)) defines a list of acts that constitute war crimes in a NIAC. In the Tadić case, decided by the International Criminal Tribunal for the former Yugoslavia in 1999, the Tribunal ruled that serious violations of Common Article 3 involve individual criminal responsibility.

Core legal obligations

International humanitarian law

Common Article 3 to the 1949 Geneva Conventions

Common Article 3 obliges each party to a non-international armed conflict to treat humanely all persons “taking no active part in the hostilities”, whether civilians or soldiers that have laid down their arms or who are hors de combat because of sickness, wounds, detention, or any other cause.

Violence against such individuals, in particular murder, mutilation, torture, rape, or other cruel, humiliating or degrading treatment, is prohibited. Summary or arbitrary executions are also prohibited and sentences shall only be imposed after a fair trial. Hostages shall not be taken.

The extent to which Common Article 3 regulates directly the conduct of hostilities is disputed, although under customary international law the principles of distinction and proportionality are held to apply in a NIAC.

International human rights law

The right to life

According to Article 6 of the International Covenant on Civil and Political Rights (ICCPR):

Every human being has the inherent right to life. This right shall be protected by law. No one shall be arbitrarily deprived of his life.
The rights to liberty and security

The rights to liberty and security 

According to Article 9 of the ICCPR:

1. Everyone has the right to liberty and security of person. No one shall be subjected to arbitrary arrest or detention. No one shall be deprived of his liberty except on such grounds and in accordance with such procedure as are established by law.

2. Anyone who is arrested shall be informed, at the time of arrest, of the reasons for his arrest and shall be promptly informed of any charges against him.

3. Anyone arrested or detained on a criminal charge shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release. It shall not be the general rule that persons awaiting trial shall be detained in custody, but release may be subject to guarantees to appear for trial, at any other stage of the judicial proceedings, and, should occasion arise, for execution of the judgement.

The prohibition of torture

According to Article 7 of the ICCPR:

No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment. In particular, no one shall be subjected without his free consent to medical or scientific experimentation.

According to Article 2 of the UN Convention against Torture and and Other Cruel, Inhuman or Degrading Treatment or Punishment

1. Each State Party shall take effective legislative, administrative, judicial or other measures to prevent acts of torture in any territory under its jurisdiction.

2. No exceptional circumstances whatsoever, whether a state of war or a threat or war, internal political instability or any other public emergency, may be invoked as a justification of torture.

3. An order from a superior officer or a public authority may not be invoked as a justification of torture.

The right to fair trial

According to Article 14 of the ICCPR:

1. All persons shall be equal before the courts and tribunals. In the determination of any criminal charge against him, or of his rights and obligations in a suit at law, everyone shall be entitled to a fair and public hearing by a competent, independent and impartial tribunal established by law. The press and the public may be excluded from all or part of a trial for reasons of morals, public order (ordre public) or national security in a democratic society, or when the interest of the private lives of the parties so requires, or to the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice; but any judgement rendered in a criminal case or in a suit at law shall be made public except where the interest of juvenile persons otherwise requires or the proceedings concern matrimonial disputes or the guardianship of children.

2. Everyone charged with a criminal offence shall have the right to be presumed innocent until proved guilty according to law.

3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality:
(a) To be informed promptly and in detail in a language which he understands of the nature and cause of the charge against him;
(b) To have adequate time and facilities for the preparation of his defence and to communicate with counsel of his own choosing;
(c) To be tried without undue delay;

Derogations

According to Article 4 of the ICCPR:

1. In time of public emergency which threatens the life of the nation and the existence of which is officially proclaimed, the States Parties to the present Covenant may take measures derogating from their obligations under the present Covenant to the extent strictly required by the exigencies of the situation, provided that such measures are not inconsistent with their other obligations under international law and do not involve discrimination solely on the ground of race, colour, sex, language, religion or social origin.

2. No derogation from articles 6, 7, 8 (paragraphs I and 2), 11, 15, 16 and 18 may be made under this provision.

3. Any State Party to the present Covenant availing itself of the right of derogation shall immediately inform the other States Parties to the present Covenant, through the intermediary of the Secretary-General of the United Nations, of the provisions from which it has derogated and of the reasons by which it was actuated. A further communication shall be made, through the same intermediary, on the date on which it terminates such derogation.

Last updated: 13 July 2012

The situation in the Golan Heights

The unresolved conflict in the Golan Heights involves a prolonged military occupation by Israel, which is governed by the law applicable to international armed conflicts.

Applicable international humanitarian law

Both Israel and Syria are party to 1949 Geneva Convention IV, which applies in situations of occupation. The regulations attached to the 1907 Hague Convention, which are considered customary law (2), are also applicable to a situation of military occupation. As only Syria has adhered to 1977 Additional Protocol I, the Protocol is not itself applicable directly, although those provisions that reflect customary international law do apply. (3)

Notes

(1) Summary of the rules applicable in armed conflicts of a non-international character, derived from the ICRC Study of Customary International Humanitarian Law (see PDF below).

(2) See, for example, the International Court of Justice, Wall Advisory Opinion, 2004, §89.

(3) See, for example, the International Committee of the Red Cross study of the rules of customary international humanitarian law (see PDF below).

Last updated: 13 July 2012

   
ICRC study of the rules of customary international humanitarian law
Customary Rules of International Humanitarian Law Applicable in Armed Conflicts of a Non-International Character
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