In a phone call today with a friend working on issues pertaining to the Responsibility to Protect (R2P), an interesting question arose. In particular, what types of conflict are going on with the fight against ISIS? My friend wanted to draw attention to the R2P aspects of the crisis, and whether the “intervention” on the side of the US was just according to these standards. While this is certainly an interesting question, I think it points us in the direction of a larger set of questions regarding the nature of the conflict itself. That is, what are the existing laws with which we ought to view the unfolding situation inside Syria? The complexity of the situation, while definitely a headache for strategists and politicians, is going to become equally difficult for international lawyers too. In particular the case has at least two different bodies of law at work, as well as laws pertaining to R2P crimes. Thus any action within Syria against ISIS, or Al-Qaeda, or Assad, or the rebels will have to be dealt with relationally.
Let us look to the case. Syria has been experiencing civil war for three years. Assad’s violations the rights of his people mean that he has manifestly failed to uphold the Responsibility to Protect Doctrine. R2P requires that states hold the primary responsibility to protect their peoples from genocide, ethnic cleansing, war crimes and crimes against humanity. Given Assad’s use of chemical weapons and cluster munitions, as well as targeting civilian populations, he has clearly committed war crimes and crimes against humanity. That Assad has employed the Shabiha, a private paramilitary force, to engage in killing means that he has also more than likely engaged in ethnic cleansing as well. In a perfect world, the Security Council would have acted in a “timely and decisive manner” to stop such abuses, and would have referred the case to the International Criminal Court (ICC) for prosecution. Of course, in May of this year, 53 countries urged the Security Council to refer the situation to the ICC. A mere two days later, Russia and China blocked the referral to the ICC by utilizing their permanent veto powers. Three years of bloodshed, civil breakdown, hundreds of thousands dead, and three million of refugees, it is too clear that there was no desire to intervene in the crisis. Thus we can say that there is an ongoing R2P crisis, and that Assad—as leader of the government of Syria—ought to be held to account for these acts. Moreover, there is a failure of the international community to live up to its obligations (as it voluntarily incurred under the 2005 World Summit Outcome Document).
The sheer destruction and violence inside Syria is what permitted the rise of ISIS. This seems an indisputable fact. The group capitalized on the civil war and breakdown, the tensions between and factionalization of the Syrian rebel groups, and the international community’s reluctance to engage Assad. Thus until ISIS pushed into Iraq, the international community would probably have let it be. Moreover, international law would have deemed the issue one of a non-international armed conflict. However, once ISIS set its sights on the Mosul Dam, the international community began to wake up.
With this act, ISIS transformed the non-international armed conflict into a two-dimensional one. In other words, it added an international dimension too. Thus as the fighting between the rebels and the Assad regime continued (and continues) to be a non-international armed conflict, but the fighting of ISIS in Iraq meant that ISIS-Iraq-Kurd conflict is international. If one doubts this reading, then it would have at least become a transnational armed conflict at the very least, but because ISIS targeted Iraqi infrastructure, it seems more likely that this single act transformed the conflict into an international one.
Now that the US and other regional powers have entered the fray, it is most definitely an international armed conflict – between ISIS and these states. However, we must still remember that the civil war between Assad and the various rebel fighters is also still ongoing (as well, presumably between ISIS vs. Assad). Thus there is still a non-international armed conflict here too. And, let us not forget, R2P and Assad!
What does this all mean? Well, in short it means that the only way to tell which set of laws applies is to look at the relation of the parties at any given moment. The casuistry here will become the all-important determining factor. For example, if the US trains and arms “moderate” Syrian rebels, one would have to look at the particular operation to determine which set of laws applies. Is the operation one undertaken in support or in concert with the US-led coalition against ISIS? Yes? Then international humanitarian law applies. Is the operation undertaken by these trained and armed rebels one against the Assad regime? Yes? Well, then this may or may not be a non-international armed conflict. The International Court of Justice, for instance, holds that in the case of third party intervention in support of a rebel group, the third party needs to have “overall control” of the rebel group for that conflict to be considered “internationalized.” Given the different rebel groups, this could become a daunting analysis. Is control of one sufficient to say it is for “all?” Or just this one group?
These little details matter because the law of international armed conflict is much more robust than the law pertaining to non-international armed conflict. As the International Committee of the Red Cross notes:
“Although the existence of so many provisions and treaties may appear to be sufficient, the treaty rules applicable in non-international armed conflicts are, in fact, rudimentary compared to those applicable in international armed conflicts. Not only are there fewer of these treaty rules, but they are also less detailed and, in the case of Additional Protocol II, their application is dependent on the specific situations described above.”
In other words, there are gaps in the protection of rights, persons, property and the environment relating to non-international armed conflict that do not exist in international humanitarian law (i.e. international armed conflict). Thus the case of ISIS challenges the international community in more ways than one. It is not that there are not laws applying to these conflicts, but that the conflicts are so convoluted that the states and parties to this conflict, as well as potential international prosecutors, will rely on so much more circumstantial evidence to sort out the details about what is permissible and when. This, however, is not something likely to happen ex ante in targeting operations, training and arming. I fear that while there are overlapping jurisdictions of rules and laws here, the convoluted nature will engender an even greater realm of permissiveness and the parties to the conflicts will end up transferring more risk and harm to the bystanders. Civilians always suffer, to be sure, but the laws of war are supposed to mitigate that suffering. If the laws of war are convoluted because of the complexity of the actors and their relationships, then this will have greater deleterious effects on the lives and rights of noncombatants.
Heather, this is a really great post. You’ve raised a lot of really interesting and good points. I just wanted to raise a question about classification. I’m not sure that ISIS’ attack on Mosul Dam transformed the conflict in Iraq into an international one. My understanding is that international armed conflicts are conflicts between states. While ISIS may claim it is a state, it isn’t widely recognized as such. Since it is considered a non-state armed group, the fighting in Iraq would be considered a non-international armed conflict.
This conflict may have turned into an international armed conflict when the US led coalition entered into the fray, particularly if the strikes in Syria were conducted without Syria’s consent.
Great post, highlighting the legal complexity of issues. I think Betcy has a point, ISIS isn’t a state so while crossing the Iraq/Syria border may have transnationalized the conflict, it didn’t necessarily internationalize it. I also think from one angle, leaving aside the Syrian civil war, the legal complexity is really only about whether violation of Syrian sovereignty is justified since Iraq has invited the US and others to take action against ISIS. But from another perspective, which your post does a great job of bringing to the fore, there is tremendous legal complexity thinking about frameworks for governing action between states and non-state actors. Am I off base here?
Thanks all for these great comments. I think you are right to point to a common consensus that international armed conflict must occur between states. However, this view is under strain. First, the Israeli Supreme court ruled in 2006 that all conflicts that cross a border — between a state and a nonstate actor or between states — may be deemed international in character. This is not widely appealed to, but there are movements from scholars to this effect as well.
I would say that IS presents a case that is difficult to call a noninternational armed conflict (NIAC) purely. Certainly IS is organized, meaning it has a command structure and carries out operations in an organized manner, it has a level of logistics, and there is certainly a level of discipline and ability of that structure to enforce obligations under Common Article 3 (for NIAC), it wears its arms openly, and this is a protracted conflict of a particular threshold to warrant it being deemed an “armed conflict”.
Ordinarily, we’d just say that this group is within Syria’s borders, and even though it occupies large swaths of land, ought to be considered in a NIAC with Syria and other rebel groups.
The trouble is that it occupies large swaths of land and that Syria is incapable at this moment of upholding most of its obligations under the Articles of State Responsibility due to its current and ongoing civil war. Sure, we might say that Syria is responsible for IS, but only to the extend that it couldn’t or didn’t stop its rise. But the trouble is that IS is acting like another state within Syria. It is providing basic services and it is fashioning itself as a state (whether we agree or not).
There are two issues at play here, at least, on my reading. 1) If IS in crossing the Iraqi border and targeting Iraqi infrastructure triggered an international armed conflict (IAC) and 2) Whether if this is insufficient (as I noted in the blog) for a IAC but would result in a transnational armed conflict rather than an NIAC.
1) IS is not a “state party” to the Geneva Conventions. This reading is that only states can be in international armed conflicts. Even customary law states that the Conventions are wide sweeping, but only states can be parties. I think, given the character of the group and its attempt at carving out territory from other states to create a new state challenges international law. I think the lawyers attempt at saying “the letter” without the “spirit” may get us into trouble. But, I and maybe only a small few international lawyers feel this way.
2) If we want to hold to the letter of international law –which is still playing catch up (notice the new category of ‘transnational’ in addition to non-international and international) – and deems this a transnational armed conflict. This one might fit, but it is at this point a bit unclear.
A) For example, (take the Mosul Dam example off the table and use American involvement instead). American operations inside Iraq: did the American’s get consent from Iraq before undertaking those operations? Does it matter? No one seems to have asked them – given that at the time there was a fight over the office of prime minister. The Kurds were helping the US in its limited humanitarian capacities, so maybe that was all that was needed? There was certainly nothing like a Security Council Resolution. Nope, there was an ex post memo from NGOs appealing to the UN to stop ethnic cleansing.
B) The American operations inside Syria: there was reporting that the US “informed” Syria that it was going to bomb IS. But “informing” isn’t consent. Moreover, even if Assad wants IS defeated, he could easily round on the entire situation and claim that he never gave consent. If this is the case, then the actions would turn it into an IAC. This is Jarrod’s worry. That while Iraq – after getting its act together — invited the US and its allies into its territory, there is not clarity on the consent of Syria.
C) and here is where I will stop: Say you disagree that it is transnational, and you disagree that it is a IAC. Then what would it be? According to the letter of the law, it would be a NIAC with an “internationalised” character. But now we are really splitting hairs. Because we would have to show that any operations inside Syria are purely limited to IS and are not in any way directed against Assad. This will be increasingly difficult given that we are claiming to arm Syrian opposition rebels. How would we demarcate these lines? For example the International Court of Justice 1986 Nicaragua case claimed that:
“The conflict between the contras’ forces and those of the Government of Nicaragua is an armed conflict which is ‘not of an international character’. The acts of the contras towards the Nicaraguan Government are therefore governed by the law applicable to conflicts of that character; whereas the actions of the United States in and against Nicaragua fall under the legal rules relating to international conflicts.”
But we don’t know 1) if our inability to effectively control the rebels will yield an “unintentional” internationalisation of the armed conflict or 2) whether we decide to expand the war aims and take aim at Assad (though with some sort of plausible deniability, I’m sure.)
I think the basic points still stand. We have entered into a condition where IS doesn’t fit the NIAC model very well, and the use of Syrian rebels inside Syria poses problems for criteria of effective control, articles of state responsibility and IAC.
Dear editor,
When I was reading this article, I read where you said that the involvement of US-led coalition in Iraqi ans Syrian conflicts changed the type of conflict to international armed conflict. However, the latter pit the two states. Therefore, that argument might not be correct, since the coalition is seemingly fighting the rebels not states, and in Iraqi one can possibly confirm the direct support to the government. Unlike in Syria, no direct support to the state, but it does not offer support to fight the government. Moreover, for the type of conflict to acquire international character, the factor of effective control of the rebel group(s) is required.
Therefore, I am of the view that this be verified to better inform the readers.
Thank you!
@PDUSABE
Anti-terrorist military operations, including those resulting from the events of 11 September, can have fundamental characteristics that are far removed from those of inter-state armed conflicts as principally envisaged in the laws of war. This is because of six factors relating to the nature of the opposition:
• Neither all terrorist activities, nor all anti-terrorist military operations, even when they have some international dimension, necessarily constitute armed conflict between states. Terrorist movements themselves generally have a non-state character. Military operations between a state and such a movement, even if they involve the state’s armed forces acting outside its own territory, are not necessarily such as to bring them within the scope of application of the full range of provisions regarding international armed conflict in the 1949 Geneva Conventions and the 1977 Geneva Protocol I.”
• Anti-terrorist operations may assume the form of actions by a government against forces operating within its own territory; or, more rarely, may be actions by opposition forces against a government perceived to be committing or supporting terrorist acts. In both these cases, the conflict may have more the character of non-international armed conflict (that is, civil war) as distinct from international war. Fewer laws-of war rules have been formally applicable to civil as distinct from international war, although the situation is now changing in some respects.
• In many cases, the attributes and actions of a terrorist movement may not come within the field of application even of the modest body of rules relating to non-international armed conflict. Common Article 3 of the 1949 Geneva Conventions is the core of these rules, but says little about the scope of application. The principal subsequent agreement on non-international armed conflict, the 1977 Geneva Protocol II, is based on the assumption that there is a conflict between a state’s armed forces and organised armed groups which, under responsible command;exercise control over a part of its territory, and carry out sustained and concerted military operations. The protocol expressly does not apply to situations of internal disturbance and tension, such as riots, and isolated and sporadic acts of violence.’
• Since terrorist forces often have little regard for internationally agreed rules of restraint, the resolve of the anti-terrorist forces to observe them may also be weakened, given the low expectation of reciprocity and the tendency of some part of the public under attack to overlook any breaches by their own forces.
• A basic principle of the laws of war is that attacks should be directed against the adversary’s military forces, rather than against civilians. This principle, violated in terrorist attacks specifically directed against civilians, can be difficult to apply in anti-terrorist operations, because the terrorist movement may not be composed of defined military forces that are dearly distinguished from civilians.
• Some captured personnel who are members of a terrorist organization may not meet the criteria for PoW status as set out in the 1949 Geneva Convention III. In particular, such personnel may fail to pass the tests of ‘belonging to a Party to the conflict’, ‘being commanded by a person responsible for his subordinates’, ‘wearing a fixed distinctive sign’, and ‘conducting their operations in accordance with laws and customs of war’. However, even if they are not entitled to PoW status, such persons should still be treated humanely. (The question of prisoners is discussed in greater detail below.)
Reference: https://www.aclu.org/files/projects/foiasearch/pdf/DOS000590.pdf
Interesting post, only I cannot understand why it seems problematic that the conflict involving ISIS is a NIAC.
I think it is not debated that NIACs pit one or more States and one or more armed groups whereas in IACs States fight against each other. So, granted that we agree that ISIS is not a State but an armed group, even though ISIS is fighting in Iraq or against the US in Syria, it is clearly one pr more NIACs we are talking about. Also, I would not say that transnational conflicts are a third type of armed conflicts but that they merely are NIACs which reach a different country than the one were they broke out.
I completely agree with you when you say that the ISIS situation raises many questions under international law including issues of conflict classification, but I would not say that the fact that ISIS is involved in one or more NIACs is one of these problems.