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.