Earlier this month, The Guardian reported that the Obama administration blocked a Pentagon supported plan to provide arms to Syrian opposition forces. For civilians in Syria hoping for meaningful intervention to stop the conflict, this must have been difficult news to absorb. I was reminded of this story yesterday while attending an informative workshop in Amman, Jordan on Islamic law and the protection of civilians. At the time, we were discussing how a non-international armed conflict (NIAC) becomes an international armed conflict (IAC) under international humanitarian law (IHL). In legalese, this happens when a state becomes “a party to the conflict”, aligning with the rebels in opposition to the government. This discussion made me wonder whether the United States would become a party to the Syrian conflict if the Obama administration did decide to arm the rebels. It’s pretty clear that taking part in hostilities on the ground, say dropping bombs on government targets, would make a state a party to the conflict. But what about more indirect involvement like supplying weapons to rebel forces? IHL says a state can become a party to an armed conflict if its support of an opposition force is such that the opposition force’s actions can be attributed to that state. What acts would create this relationship under IHL is subject to debate. Providing military aid might qualify if it is done so that it enables a state to exert some control over rebel forces. While the United States has rejected plans to arm the Syrian rebels, some regional countries allegedly have supplied them with arms. If the weapons transfers enable these states to exert legally sufficient control over the rebels, it may well transform the Syrian conflict from a NIAC to an IAC.
The issue of how a NIAC might transform into an IAC is an interesting one. Another interesting issue is what implications this change might have for civilians in the conflict. On the one hand, because international armed conflicts are more regulated than non-international armed conflicts, members of the Syrian regime are potentially exposed to heightened legal liability in an IAC. The threat of internationalizing the Syrian conflict, and the increased legal liability that comes with it, might be another way to motivate the Assad regime to stop the atrocities sooner rather than later. This is in addition to the advantages rebels gain from more direct involvement by their state allies. But being subject to an IAC’s more robust legal regime may also have the opposite effect on the Assad regime. Concerns about facing more numerous charges may cause the regime to dig in further to avoid being hauled into The Hague, causing more harm to civilians. All of this assumes a credible threat of a UNSC referral of the Syrian situation to the ICC (a very big assumption). As seems to be the case with many possibilities to end the suffering in Syria, the option of internationalizing the conflict feels like a dead end.
Betcy,
As much as I’d like to believe that IHL (and the aggravated accountability that might ensue from the “internationalization” of the conflict by using IAC rather than NIAC standards,) might help to temper the Syrian regime’s criminal attitude toward civilians, most if not all evidence points to deep skepticism. Perhaps down the line there will be studies about whether or why the Assad regime showed “restraint” from using a certain repertoire of violence, and though I’d be interested to see them, I’d be dubious as to IHL having any causal role there (at least in the sense of it having meaningfully influenced the decisions at the top.) Targeting civilians looks like a conscious strategy of war for that regime, and increased accountability for more crimes is unlikely to deter Assad and his aides; indeed, as you suggest, it might do the opposite.
The more interesting questions for me relate to 1) rebel conduct; 2) third party responsibility. I wonder to what extent Syrian rebels may be receiving training on IHL. It would make sense, since they are precisely looking for domestic and foreign legitimacy– a key motivation. I’m also sure the ICRC is trying to teach them the basics, as it always does. Not to mention that this would also be in the interest of those supporting them outside…
…which brings me to 2) wasn’t the test for third party involvement one of having “overall control” on the rebel group? Funding the rebels to provide basic services in the territory where they operate (as it was announced today the US would do) does not seem to meet that test, at first glance. There seem to be others giving them weapons though, so the case for them may be stronger.
Interesting post- thanks.
GM,
Thanks so much for your comment. I do agree with you that IHL on its own might not be a strong deterrent. That’s why I suggested that a stronger legal regime (via internationalization) might be one among many other incentives that might persuade the Assad regime to halt atrocities. There is some anecdotal evidence that the possibility of an ICC investigation might encourage government actors to reduce violence against civilians more so than rebel groups, but this is a question that certainly needs to be investigated.
As for training Syrian rebels in IHL, a number of those fighters defected from the Syrian military where they presumably received some level of IHL training. And non-state actors are likely talking to rebels about their IHL obligations. However, disclosing these activities might be a challenge for non-state actors because they might be interpreted as providing material support (via expert advice and assistance) to terrorists in violation of the Patriot Act (see Holder v Humanitarian Law Project).
As for when a state’s alliance with a rebel group makes it a party to the conflict (thus internationalizing the non-international armed conflict), my understanding is that it happens when the rebel group comes under the direction and control of the state ally. When a rebel group comes under the direction or control of state is a matter of debate. I think you are right that a state which simply funds a rebel group would not become a party to the conflict. However, funding and/or weapons transfers which come with some pretty strong conditions for supervision or oversight (such as directing significant military activities of the rebel group) might qualify as directing and controlling, making the state a party to the conflict.