The International Committee for the Red Cross (ICRC) recently determined that the situation in the entire country of Syria can be classified as a non-international armed conflict. While this may not have been news to many watching events unfold there, what makes this statement interesting is that this position differed from the position advanced in May 2012 by then ICRC President Jakob Kellenberger. At that time, Kellenberger claimed that parts of Syria could be classified as an “internal” armed conflict, particularly in the area around Homs and in the Idlib district. The difference may appear inconsequential, but may in fact have some significant impact on the ground. The difference between whether an entire country is embroiled in a non-international armed conflict versus specific locations within that country has bearing on what constitutes a violation of international law. The two main bodies of international law relevant to armed conflict are international humanitarian law (IHL) and international human rights law (IHRL). IHL is the body of law which governs armed conflict and is only triggered when there is an armed conflict. IHRL generally applies in peacetime, although it can apply during war time as well. What is interesting about Kellenberger’s statement is that it is a departure from how IHL has traditionally understood territoriality within the context of non-international armed conflict. Traditionally, once fighting reaches the intensity threshold contained within the legal definition of non-international armed conflict anywhere within the territory of a state, international law considers IHL to apply to the entire state, even if that fighting is not widespread (assuming the other definitional requirements of non-international armed conflict have also been met). What this potentially new localized concept of non-international armed conflict does is enable the application of IHL to those areas of a country that meet these definitional requirements of armed conflict, while allowing IHRL to have priority in those areas of a country that do not.
While the ICRC later determined that IHL applies to the entire country of Syria, its earlier statements about Syria having a localized internal armed conflict raise perplexing questions and generated interesting discussions (for more detailed legal analysis of the relevant issues see here) about the application of international law in armed conflicts. Are localized armed conflicts now a third category of armed conflict, distinct from the established categories of international and non-international armed conflicts? If so, what does the limited application of IHL mean for civilians on the ground? For example, for civilians in Syria, which body of international law offers more protection? States have more leeway in using lethal force against individuals under IHL, although IHL does offer civilians protections like the civilian immunity. The bar is much higher for the state use of lethal force against individuals under IHRL (essentially, lethal force is an option of last resort), yet IHRL violations tend to get less external attention than say war crimes and other such IHL violations. This heightened attention might have a deterrent effect. Furthermore, the international community’s relatively quick classification of Libya as an armed conflict compared to the drawn out debate on Syria raises interesting questions about how such legal assessments are made. One thing does seems clear: as the international community wrangles with how to classify what is happening in Syria, people continue to be killed in that country, suggesting violations of various bodies of international law.
I’m not quite sure what the point of this post is. It is not the ICRC’s role or mandate to determine whether an armed conflict is inter- or intra-national. Indeed, to quote the article;
“The ICRC concludes that there is currently a non-international (internal) armed conflict
…
Its documents and reports, including those shared with the authorities, cannot be used as evidence in any legal proceedings.”
The ICRC’s judgement has no bearing on the conflict in this regard. Its capacity is advisory, and I think you’re making far too much of Kellenberger’s statements. I don’t think we’re witnessing a new logic of armed conflict and its regulation. Either that, or his statements in that Reuters article are purposefully ambivalent. Regardless, all civil wars are localized – rather than being an element of a definition of civil war, national extent is surely a variable.
Was there any doubt that this conflict would be considered an intranational armed conflict, and therefore fall under the jurisdiction of IHL? Considering that military forces have been employed since day one to quell the uprising (this satisfies minimum intensity), and that there is extensive opposition organization (Mujahideen parties, Kurds, Free Syrian/Syrian Liberation Army). I don’t see where the doubt is. IHL applies, but considering that we aren’t observing anything like the ethnic cleansing and associated atrocities witnessed in East Timor and Kosovo, I don’t know if anyone important cares.
Your post shows little knowledge of the politics of international humanitarian law. A few basic points:
1) The ICRC is an essential source in the interpretation of IHL. At least in terms of normative interpretation, it absolutely matters what it thinks and what it says. This is an established international practice that is well within that organization’s mandate and capacity, even if governments will often want to publicly argue that no conflict actually exists, or if they wantonly violate IHL.
2) The ICRC’s capacity is far from being only advisory. It may look like that to the uninformed observer, but that is only because for political and humanitarian reasons, the ICRC usually does not name and shame violators. But rest assured that behind the scenes a lot is happening, whether effectively or ineffectively.
3) Much doubt was expressed about whether the Syrian conflict was a civil war from the get-go. Was this in fact not the constant refrain until a few months ago? The ICRC takes seriously the study of whether the several definitional requirements are met, and that isn’t necessarily an easy task.
4) The reason why the ICRC claims that its confidential diplomatic documents cannot be used in legal proceedings is not because they are in fact worthless, but because the organization wants to protect its neutrality so that the parties to conflict will not choose to deny it access to the areas where they operate, especially to victims (wounded, sick and captured.)
5) Whether “anyone important” cares or not, we cannot yet know. What we do know, however, is that now that the Syrian conflict has been officially classified as a “Common Article 3” conflict the ICRC has been able to visit the country (the new ICRC President was there not long ago) and the insurgent side has vowed to try to respect IHL, at least rhetorically. I’m skeptical any of this will translate into behavioral change, but still, the international legal stakes have been raised.
I will say that I think Kellenberger’s statement is confusing and unhelpful, but he might have felt at liberty at the time since he was stepping out as President of the ICRC. I’m sure the lawyers within the organization probably weren’t very happy, which is why it eventually backtracked.
When did I say it doesn’t matter what the ICRC says? The notion that it matters what the ICRC says is implicit in what I identified as it serving an advisory role. And yes, it is not strictly advisory; the ICRC also has a fact finding mission and monitors compliance with IHL and sends delegations, so on and so forth.
But the ICRC does not interpret the law; this what the courts and case law, such as the ICTY, do. It is these courts that he ICRC stays absolutely clear of. I feel like you’re confusing interpret, which has legal implications, and clarify. In terms of normative implication, I’m not sure what the implication is; are you saying that the ICRC influences how IHL should be understood? In some respects it might, but in this regard a cacophony of actors could also be said to influence the normative interpretation of IHL.
I never said ICRC findings and statements are worthless. I said the ICRC concluding that the conflict is a non-international armed conflict under Common Article 3 doesn’t actually make it so. The ICRC says this in its advisory role. It’s not a ruling. And the ICRC has been in Syria all year, caring for civilians, visiting prisoners, and corresponding with non-violent civil protest groups… so what’s the implication? It’s not like it hasn’t been monitoring IHL application from the get go anyways.
Who was expressing doubt that the conflict was a civil war, and why? It has for quite some time met the requirements that the ICRC understands of a civil war, namely minimum intensity and minimum organization, and ‘we’ routinely talk of areas and towns that support or are controlled by opposing forces, satisfying Article 1 of Additional Protocol 1. So where’s the dispute? For this reason, I consider Kellenberger’s ambiguous statements to be politicking, nothing else, and symptomatic of the uneasiness by which the international community is grappling with the lingering effects of the Arab Spring.
When anyone – even the ICRC – starts calling it a civil war, it opens up a can of worms. But how anyone can think that there was any doubt as to it being so – or becoming so – is a mystery to me. Or maybe it’s not that mysterious; this is a political process after all. If it’s a civil war, we’ll start talking about IHL, enforcement, war crimes, and eventually intervention. And intervention is the hot-button issue here.
My overarching point was that I disagree with the notion that Kellenberger or anyone else heralds a new ‘localisation’ logic of IHL. Moreover, I think it’s absurd to read too much into Kellenberger’s statements, particularly given the backtracking. I think Syria is business as usual.
I do agree with you about the Kellenberger comments. I would not read too much into them either.
And you’re right, the ICRC is one among a cacophony of voices. But it is also foremost among them. Yes, it isn’t a court, and what it says isn’t a legal ruling, but by virtue of being the historical “guardian” of IHL, the humanitarian organization with highest standing on this issue, and the outside actor with probably the “best” knowledge on what happens on the ground, what it says is bound to be taken very seriously, especially by courts eventually reviewing Syrian atrocities.
In fact, I do not presume that courts will later disagree with the ICRC and debate what it has said publicly. They are more likely to cite it, interpret it progressively and build upon it, no? I’d be curious to learn (because I honestly do not know) of cases where courts have differed from public ICRC assessments of conflict status and violence, thereby lowering the legal stakes. But if you do, please share.
Finally, I agree with you that the semblance of violence in Syria has been horrible from the beginning, and that there has been talk of organized insurgent groups and temporary control of territory. But whether insurgents are in fact organized enough, and whether they hold territory for more than a short-lived window of time, has been far from settled or uncontroversial since the beginning. I’ve sensed lots of confusion about whether one can meaningfully speak of an “insurgency” (not many) and whether they are indeed organized (or deeply splintered/divided within.) And the control of territory has also been fairly fluid as well, no? The only thing that has been more or less clear has been the brutality and the duration of violence, but those are (sadly) only part of the equation.
In the end the ICRC *eventually* determined all these requirements were met, and given the sensitivity of the issue we can guess that it probably took its time to back it up as solidly as possible with its on-the-ground knowledge. What this delayed process suggests is that as horrible as violence may look to us, the decision to call it a non-international conflict under IHL is a fairly complicated legal one because of the many factors involved in the equation.
And finally: you’re right, declaring a conflict is a “civil war” is also deeply political; proof of this is how long it took the US to do just that. To do so in the current context, as you suggest, raises the specter of intervention.