Editor’s note: This is the latest in a continuing series about alleged war crimes in Syria. You can find the previous installments here and here.
While several sides of the conflict in Syria have temporarily set aside their weapons (albeitimperfectly) and with peace talks scheduled to restart tomorrow (or maybe next week), this seems like an opportune time to look at some of the weapons that have been used and the law governing munitions as part of my ongoing series about alleged war crimes in the country. This post discusses deliberate, indiscriminate, and disproportionate attacks on civilians carried out with specific weaponry, and looks at when the use of certain weapons or weapon systems can constitute war crimes under international law, even when used against combatants, who are lawful targets.
As an initial matter (and as I have discussed previously), although determining what sort of conflict is at issue remains an important exercise, it has become less relevant to the prosecution of war crimes since the renaissance of customary international law (CIL) in international criminal law. Customary international law now prohibits and penalizes many breaches of international humanitarian law (IHL) regardless of whether they are committed in an international armed conflict (i.e., a conflict between states, or IAC) or a non-international conflict (i.e., a conflict between a state and non-state actors or among non-state actors, also known as a NIAC). Thus, a tribunal dedicated to the conflict in Syria (and/or Iraq) could prosecute most war crimes without running afoul of the international law principle that prohibits the prosecution of anyone for an act that was not criminal at the time it was committed. However, it’s worth noting that if an ICC referral is ever forthcoming, there are some war crimes for which the IAC/NIAC distinction remains relevant under Article 8 of the ICC Statute. Additionally if the only courts available to prosecute war crimes in Syria are domestic courts, individual states may not have codifiedthe full range of war crimes with respect to NIACs, particularly when it comes to prohibited and problematic weaponry. The law in this area thus exemplifies two of the themes of this series: There are times when activities that are clearly war crimes cannot be prosecuted because appropriate courts cannot be found, and there are times when the law isn’t sufficiently clear to allow a prosecution to move forward. These issues come into stark relief in the context of the specific weapons and weapon systems used in Syria.
Deliberate, Indiscriminate, and Disproportionate Attacks on Civilians
One of the foundational IHL principles requires all parties to a conflict to distinguish between lawful and unlawful targets, and this distinction underlies a number of war crimes (e.g., here, here, and here). The law governing the direct targeting or mistreatment of civilians, civilian objects, and other protected persons and things is relatively straightforward and applies across the conflict spectrum. These prohibitions could open the door to prosecuting those responsible for deliberate attacks on bakeries and markets in opposition-controlled territory and the mistreatment of civilians, combatants, and other armed actors in formal and informal detention facilities. These rules would also enable the prosecution of those who deliberately target journalists or hospitals, which enjoy special protection under IHL. (Russia has also been implicated in intentional hospital attacks.) All these crimes could easily be prosecuted by the ICC or under most domestic war crimes statutes (assuming the latter penalized such crimes when committed in NIACs).
Beyond such direct attacks, however, the ICC Statute diverges from CIL and depends in meaningful ways on conflict classification. National penal codes that hew closely to IHL treaties will do the same. As a result, prosecuting even obvious war crimes in the Syrian context may be quite complex. For example, the ICC cannot prosecute the crime of deliberately inflicting terror on a civilian population, even though this crime has a strong treaty basis in both IACs and NIACs, as well as in CIL. A tribunal with jurisdiction over CIL war crimes (rather than the ICC), however, could prosecute this offense in connection with events in Syria.