Mapping the Law That Applies to War Crimes in Syria

Publication Type: 
Other Writing
Publication Date: 
February 1, 2016

War crimes have been a consistent feature of the Syrian conflict since its inception. Indeed, a map of the war crimes committed in Syria reads like a survey course of the topic. The Syrian people have witnessed and experienced siege warfare; deliberate, indiscriminate, and disproportionate attacks against civilians and civilian objects; the misuse of conventional, unconventional, and improvised weapons and weapon systems; industrial-grade custodial abuses exemplified by photographs secreted from the country in 2013 by a former forensic photographer codenamed “Caesar”; the denial of humanitarian aid and what appears to be the deliberate use of starvation as a weapon of war; the intentional destruction of cultural property; and rampant sexual violence against men,women, and children. The emergence of the Islamic State of Iraq and the Levant (ISIL) on the scene introduced a new set of even more ruthless perpetrators that have brought the violence to a new even more disquieting level of brutality. In addition to war crimes, the Syrian people have experienced other crimes under international criminal law, including crimes against humanity, torture, terrorism, and potentially genocide against ethno-religious minorities.

These extreme levels of violence, coupled with the lack of any apparent progress until very recently toward finding a political resolution to the various disputes in Syria, have generated a massive refugee crisis in the region and beyond. More than 4.5 million people (out of a population of 22 million) have fled across Syria’s borders, more than 7 million areinternally displaced, and half the population needs humanitarian assistance in the form of food and/or shelter. The situation — described last year by Director of National Intelligence James Clapper as an “apocalyptic disaster” — remains grave and continues to deteriorate, without an endpoint in sight.

Although almost every war crime known to humankind has been committed in Syria, this set of posts will focus on some open legal and factual issues around certain war crimes that are particularly salient in the Syrian conflict. My legal guideposts will be the Statute of the International Criminal Court (ICC) and the ICRC’s monumental customary international law (CIL) study. The latter is particularly relevant since national penal codes and the ICC Statute do not codify all war crimes, particularly when it comes to those committed in non-international armed conflicts (i.e., conflicts between states and non-state actors, or NIACs). Indeed, if there is ever an internationalregionalhybrid, or domestic tribunal with jurisdiction over events in Syria, prosecutors could conceivably charge a range of war crimes that might not be readily prosecutable before the ICC, including many crimes that have been under-theorized and rarely prosecuted.

Below, I walk through when an “armed conflict” began (as defined by international law), and map out what the law governs war crimes committed in the country. The law of armed conflict — or international humanitarian law (IHL) — is highly technical. It is found in disparate treaties and in customary international law (i.e., state practice coupled with a sense of legal obligation). As a result, carefully laying out which treaties and customary norms apply will enable a determination of which war crimes can be prosecuted, which tribunals might have jurisdiction, and which perpetrators are subject to charges. In subsequent posts, I will offer more of a “deep dive” into particular war crimes being committed, particularly those that have been under-theorized or -prosecuted.

The Existence of an Armed Conflict and Applicability of International Humanitarian Law

There is no definitive date for the initiation of the armed conflict within Syria. This matters because the commission of war crimes requires the existence of an armed conflict, though other international crimes (e.g., crimes against humanity, genocide) do not. Under international law, an armed conflict is distinct from sporadic or minor acts of violence, including riots, banditry, ordinary crimes, and isolated acts of terrorism. Announcing a standard that has generally enjoyed consensus, with some notable exceptions, the International Criminal Tribunal for the former Yugoslavia (ICTY) stated in Tadić (para. 70) that an armed conflict exists when there is “protracted armed violence between governmental authorities and organized armed groups or between such groups within a State.” This standard contains two key criteria: the intensity of the fighting and the degree of organization of the parties as measured in part by their operating under responsible command. Situations that do not meet these criteria are governed exclusively by other bodies of law, including domestic law and human rights law, which generally impose more stringent requirements for the use of force and stronger human rights protections.

Read the full post at Just Security