Chapter 14 Audio podcast

This year, 2021, marks the ten year anniversary of the beginning of the Civil War in Syria.War started out back in 2011, a scattered and initially peaceful Arab spring street protests against the sitting government Damascus, has gradually evolved into a war of almost unimaginable tragedy.

By 2012, Syria was well engulfed in civil war, pitting the government and President Bashar al-Assad against the wide array of rebel and insurgent movements, each fighting for their own causes and for their motivations.

 But the war in Syria has not just seen fighting between Syrians.Throughout the war, different states, including Russia, Iran, Turkey, Israel, the United States, and United Kingdom have taken part in the many different conflicts that have raged on the Syrian territory. Since the beginning of the war, somewhere between four and six hundred thousand Syrians have been killed and more than ten million Syrians have either fled the country or been internally displaced by the fighting.Time and again, both the Assad regime and the different insurgent groups have been accused of perpetrating war crimes.

In this episode of the International Law Podcast, episode 14, I will focus on those parts of international law that regulates armed conflict. And as always, I've picked three issues that I will examine more closely.

The first of these concerns the classification of armed conflicts, such as the conflict in Syria and the occasional difficulty in determining how to classify an armed conflict between a state and a non-state actor that is not limited to the state’s territory.

Now, at the outset it's worth noting that international law has a distinction between international armed conflicts that involved the armed forces of two or more states, and non international armed conflicts, which involved fighting between either a state and a private organized armed group or between two or more such groups. Now, if we begin with the international armed conflicts, such conflicts generally arise when there is a difference between two states that leads to the intervention of members of the armed forces. So, for example, when United States on a few isolated instances,has used military force against Assad’s armed forces, it initiated an international armed conflict between the US and Syria.

As always,in the law of armed conflict,the determination of when an international armed conflict has arisen is one that is factual. In fact, it is immaterial whether the involves states, themselves, recognize the existence of an armed conflict or not. Here, I should note that an international armed conflict includes cases of what we call belligerent occupation. From the Syrian civil war, an example of this would be Turkey’s military presence in Northern Syria.

An international armed conflict includes all the territories of the parties to the conflict. Unlike an international armed conflict, a non-international armed conflict does not involve fighting between two or more states. Instead, the conflict involves fighting between either a state and insurgents or between different groups of insurgents. Traditionally, therefore such non-international armed conflicts has been referred to as ‘internal’ armed conflicts, or simply civil wars.

Now, two conditions have to be fulfilled before violence between two parties can qualify as a non-international armed conflict. First, the level of violence must surpass a certain minimum threshold. Secondly, both parties to the conflict must be militarily organized.In practice,the requirement of military organization can often take some time to fulfill.In the Civil War in Syria, for example, it was not until 2012 that the opposition became sufficiently military organized for the conflict to actually qualify as a non-international armed conflict under International Law.

So that was international and non-international armed conflicts. So far so good.

Now, the problem is that it is not obvious how one should classify under international law, an armed conflict that takes place between a state and a private actor, where the conflict is not confined to the territory of the state.Such conflicts are sometimes called ‘trans-national armed conflicts’.To give an example, how should we classify the conflict between the so-called Islamic state Daesh ISIL in Syria and Iraq and the different states who use force against ISIL. Is the conflict an international armed conflict, or is it a non-international armed conflict?  

In my view, the best option here is to consider such conflicts as non-international armed conflicts.To me, as long as the actual hostilities only involves the state and the non-state actor and the state does not occupy foreign territory, the conflict is one of a non-international character. Therefore, what is decisive is actually who the parties to the conflict are and not where the fighting actually occurs.

The second issue I will focus on in this episode concerns who may be lawfully targeted with deadly force in an armed conflict.

 And here I have to be precise; I mean, directly targeted with potentially lethal force.As I will come back to later, innocent bystanders may also sometimes inadvertently be killed, but that is not what I focus on here. To understand what individuals are what we call lawful targets in the law of armed conflict,it is initially worth stressing that it all depends on the status and individual in the conflict has.

In the law of armed conflict, everyone has a status and an accompanying level of legal protection.

Now, the question of status and the resulting level of protection differs somewhat in international and non-international armed conflicts, but in very general terms, there are essentially true broad categories of individuals. There are (1) combatants and (2) civilians.

Combatants can be directly targeted, and combatants are those who have made a conscious decision to take part in the fighting in an armed conflict, whether the conflict is international or non-international.In practice then, combatants are members of the armed forces, including organized armed groups that belong to the parties to an armed conflict, as well as other individuals who take a direct part in the hostilities in the conflict.

 All other individuals are civilians.

And it is because they take part in the armed conflict that combatants can lawfully be targeted with potentially lethal force. And as a point of departure, at least, combatants can be targeted at all times and in all circumstances until the conflict ends.The exception here is that if a combatant becomes what we call hors de combat, he or she shall not be made the object of attack.

A combatant is hors de combat if the individual is in the power of an adverse party, if the individual clearly expressed an intention to surrender, or if the individual has been rendered unconscious or is otherwise incapacitated by wounds or sickness, and is therefore incapable of defending him or herself.

Now,to reiterate in general, all individuals who are not combatants are deemed to be civilians. And, as civilians, they must enjoy general protection from the dangerous of military operations and they shall not be an object of attack unless they take a direct part in hostilities. Conceptually then, when a civilian participates in the fighting, he or she ceases to be considered a civilian. 

This is,of course, in accordance with a basic principle of distinction that stresses how belligerents, when they launch an attack, must distinguish between on the one hand military objectives, and on the other, civilian objects.The law of armed conflict does not prohibit a civilian from taking part in hostilities. But if a civilian does take part in the fighting, he or she will do so at his or her own risk.

Here I must stress that while direct attacks against civilians are prohibited, it is accepted that attacks on some military targets may sometimes result in civilian casualties. The law of armed conflict allows attacks on military objectives as long as the expected incidental loss of civilian life (this is what we also call collateral damage) is not excessive in relation to the concrete and direct military advantage expected. 

The third and last issue I will focus on in this episode is the relationship between human rights law and the laws of armed conflict. And this relationship is a topic that has been, and in fact, continues to be, very hotly debated in international law.

Now, to begin, it's well-established that human rights law applies alongside the laws of armed conflict in times of conflict. And mostly, the simultaneous application of the two branches of law does not raise any issues. Both legal disciplines are essentially concerned with the protection of human dignity.

However, sometimes the norms of the two different disciplines cannot be reconciled. Sometimes, one discipline outlaws what the other allows.And in those circumstances, one must be given priority over the other. Something has to prevail.

Here,one should always remember that the laws of armed conflict is lexspecialis. Unlike human rights law, the laws of armed conflict has been formulated and negotiated so that it can regulate armed conflicts. Also, there's no getting around the fact that the laws of armed conflict, in contrast to human rights law, allows for substantial room for military necessity. In fact, the whole point of the laws of armed conflict is to find a balance between, on the one side, human dignity, and on the other, military considerations.

As an overall point of departure, then, if there's discrepancy between the regulation in human rights law and the regulation of laws of armed conflict, and that discrepancy cannot be reconciled, preference must be given to the laws of armed conflict.

In practice, identifying the exact relationship between human rights law and the law of armed conflict is most acute in non-international armed conflicts, where the treaty-based regulation in the laws of armed conflict is more limited. Sometimes there simply seems to be a gap in the regulation of non-international armed conflicts. When there is a gap, there are essentially two options. The first is to let the norms in the human rights law fill the gap. And the other is to let the norms in the laws of armed conflict that regulate international armed conflicts fill the gap.

In my view, it is the latter view that is the most correct. Thus, when there is uncertainty about the regulation in a non international armed conflict, as a rule of thumb, at least, the interpreters must look for the standards and principles that apply in international armed conflicts and tries to apply those standards by analogy.