Syria and the geographical scope of international humanitarian law: moving towards a localised approach?
Syria and the geographical scope of international humanitarian law: steps towards a localised approach?
Between May and July 2012, there were a number of statements from individuals within the International Committee of the Red Cross (ICRC) and Office of the High Commissioner for Human Rights (OHCHR) which seemed to suggest that there was a non-international armed conflict in parts of Syria but not others. This prompted a discussion on the Lawfare blog about whether the statements represented a change of approach with regard to the geographical scope of international humanitarian law (see blogposts here, here, here and here).
In this post, I analyse the geographical scope of international humanitarian law as it has been addressed by the case law of international courts and tribunals. In doing so, I explore the rationale behind the traditional position that international humanitarian law applies throughout the conflict. In the light of the recent statements from the ICRC, I ask whether there would be any advantages of a more localised application of international humanitarian law. I conclude that although the current legal framework is not perfect, it is preferable to a situation where the law relating to the conduct of hostilities is strictly limited to localised areas of combat.
Statements re. there being a non-international armed conflict in parts of the country
As I far as I can discover, Jakob Kellenberger, the former President of the International Committee of the Red Cross, was the first to state that there was a non-international armed conflict in parts of Syria. It is noteworthy that his statement in this regard was quite a lot earlier than the Hicham Hassam interview in July that caused the discussion on the Lawfare blog.
In May 2012, Dr Kellenberger told Reuters that because the conflict inHoms and the province of Idlib met the ICRC’s criteria of ‘intensity, duration and organisation’, there was a non-international armed conflict in that part of the country. He was also reported to have said that the criteria were not met in the whole of the country, stating:
“It can be a situation of internal armed conflict in certain areas: an example was the fighting in Baba Amro in Homs in February“.
The consequence of this, clarified Dr Kellenberger, was that:
“It is now clear that certain acts committed by either side in those places can qualify as war crimes [my emphasis”.
On 14th July, Hicham Hassam, spokesperson for the ICRC, gave an interview which seemed to likewise follow this approach. In an article published by Reuters, the ICRC was reported to see the violence inSyria as consisting of several “localised civil wars”. In the same article, Hicham Hassam was quoted as saying:
“There is a non-international armed conflict in Syria. Not every place is affected, but it is not only limited to those three areas, it has spread to several other areas.”
At the same time, the Office of the High Commissioner of Human Rights seemed to be taking a similar approach to the application of international humanitarian law to the conflict Syria.
On 4 July 2012, Rupert Colville, the spokesperson for Navi Pillay, the High Commissioner for Human Rights, reported that the High Commissioner was of the view that there were indications that “the situation in Syria – at least in certain areas – may amount to a “non international armed conflict”. He went on to state:-
“With regard to the issue of whether or not it is a conflict, she [Navi Pillay] said there are indications that the situation in Syria – at least in certain areas – may amount to “a non-international armed conflict”…..thus entailing obligations on both parties under international humanitarian law. We believe that the number of places where this can be said to be the case is on the increase.
The legal obligations of all parties under international human rights law continue to apply throughout Syria, including conflict areas” .
The High Commissioner’s reference to international human rights law applying throughout Syria seems deliberately intended to contrast with the previously stated more restricted geographical scope of international humanitarian law.
Traditionally, in case of a non-international armed conflict, international humanitarian law is thought to apply to the whole territory.
The idea that a non international armed conflict might exist in only part of a country is unusual and as a result, the statement by Hicham Hassam caused “puzzlement” among commentators (see here). It also triggered a discussion of whether it should be interpreted as a signal that the ICRC had changed its position on the geographical scope of international humanitarian law to non-international armed conflicts (see here).
Later, on 17th July, an ICRC Legal Advisor for the United States and Canada wrote on the Lawfare blog that the ICRC’s choice of words had “been interpreted – wrongly – as giving rise to a new category of “localized NIACs” (see here).
Moreover, when the ICRC later published an official press release on Syria on the same day, it could not have been more categorical that international humanitarian law applied throughout the whole country. The ICRC’s press release stated:
The ICRC concludes that there is currently a non-international (internal) armed conflict occurring in Syria opposing Government Forces and a number of organised armed opposition groups operating in several parts of the country (including, but not limited to, Homs, Idlib and Hama). Thus, hostilities between these parties wherever they may occur in Syria are subject to the rules of international humanitarian law [my emphasis]”.
(See Rogier’s blog post here, for an analysis of the ICRC’s statements on the conflict inSyria).
So where does this leave us? Is everything back to normal? Certainly the statement by the ICRC confirms a traditional approach to the geographical application of international humanitarian law. But the earlier statements from the ICRC – particularly the first by its then President – cannot help but prompt a reflection on the rationale behind this traditional approach and a questioning of whether there would be any advantages to a more localised approach.
The rationale behind the geographical scope of international humanitarian law
The established thinking about international humanitarian law says that once an armed conflict – international or non-international – exists, international humanitarian applies throughout the whole territory of the State parties to the conflict. This position has been confirmed by the case law from the ICTY, with the only qualification that it may not be the case of a non-international armed conflict between two armed groups, where the State party is not involved.
The statement by the Appeals Chamber in the Tadic Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction (Jurisdiction Decision) is the most cited authority for this:
” Until [the cessation of hostilities], international humanitarian law continues to apply in the whole territory of the warring States or, in the case of internal conflicts, the whole territory under the control of a party, whether or not actual combat takes place there (para 70) [my emphasis]“.
This position was later affirmed in the Kunarac case where the Appeals Chamber expanded:
“There is no necessary correlation between the area where the actual fighting is taking place and the geographical reach of the laws of war. The laws of war apply in the whole territory of the warring states or, in the case of internal armed conflicts, the whole territory under the control of a party to the conflict, whether or not actual combat takes place there, and continue to apply until a general conclusion of peace or, in the case of internal armed conflicts, until a peaceful settlement is achieved. A violation of the laws or customs of war may therefore occur at a time when and in a place where no fighting is actually taking place (para 57 of Appeals Judgment) [my emphasis]“
Reading the phrase the “territory under the control of a party” literally, one can conclude that international humanitarian law will apply to the whole territory in the case of (i) an international armed conflict and (ii) a non-international armed conflict involving a State actor. In the case of an international armed conflict between State A and State B, the whole territory in State A and State B will be under the control of either State A or State B throughout the duration of the fighting. The only instance that this would not be the case would be if a portion of the territory was under the mandate of an international organisation or another third party.
In the case of a non-international armed conflict between a high contracting party and an armed group, the State territory will either be under the control of the government or the armed group. The situation will be different in an armed conflict between two armed groups because international humanitarian law will only apply to the territory under the control of those groups but it will not apply to areas outside their control.
The rationale for the application of international humanitarian throughout territory is in its protective aspects
The case law from the ICTY makes clear that the rationale behind the application of international humanitarian law to the whole of a State’s territory is rooted in its protective aspects. The Appeals Chamber in the Tadic Jurisdiction Decision stated:
“The geographical and temporal frame of reference for internal armed conflicts is similarly broad. This conception is reflected in the fact that beneficiaries of common Article 3 of the Geneva Conventions are those taking no active part (or no longer taking part) in the hostilities). This indicates that the rules contained in Article 3 also apply outside the narrow geographical context of the actual theatre of combat operations [my emphasis]” (p69).
The Appeals Chamber explains that the application of the protective aspects of international humanitarian law to the whole territory is essential to ensure that those no longer taking active part in hostilities are protected no matter where they are in the country. This is particularly important for persons who have been deprived of their liberty because there is a good chance that they will be detained in places far from the hostilities (see para 69 of the Tadic Jurisdiction Decision). It is imperative that no matter where these detainees are held, they should be able to benefit from international humanitarian law’s provisions.
Why does it matter?
While there are clearly good reasons for the protective aspects of international humanitarian law to apply to the whole territory, there is much less humanitarian imperative for the more permissive aspects of IHL relating to the conduct of hostilities to apply throughout the whole territory as soon as the two pronged threshold test of (i) organisation and (ii) intensity has been met anywhere else. International humanitarian law introduces more permissive rules on the use of lethal force than those found ininternational human rights law.
The application of those rules to any geographical area not only puts more individuals at risk of being the primary target of lethal force but also places those around them at greater risk. There is no doubt that civilians and civilian objects are always placed in greater danger, as soon as the law relating to the conduct of hostilities applies and the targeting of military objectives or fighters becomes permissible. Immediately, there is a very real possibility that civilians will be injured or killed, as a consequence of the primary military attack.
This danger to civilians is mitigated by the fact that even if international humanitarian law applies throughout the country, there is no reason why it should always be the primary legal framework. Human rights law continues to apply in times of armed conflict and the principle of lex specialis will determine whether international humanitarian law or international human rights law is the appropriate legal framework in a particular situation. In areas of the country which are far from the fighting, one would still expect the human rights framework of ‘law enforcement’ to be the lex specialis. It is also mitigated by the fact that even if it is accepted that international humanitarian law does apply to a given situation, a resort to lethal force may not be necessary in order to achieve the specific military advantage sought in the particular circumstances (see Recommendation IX of the ICRC in its Interpretative Guidance on the Notion of Direct Participation in Hostilities but see Schmitt below for a discussion of concerns that this recommendation is not well-founded in law, p39-43).
This notwithstanding, there is no doubt that a determination of (i) which body of law is the most appropriate in a given situation and (ii) whether military necessary allows for the deployment of lethal force in a given situation adds uncertainty to the legal framework and makes it vulnerable to manipulation. Because even if international humanitarian law is determined not to apply as a matter of law in a particular part of the country far from the hostilities (because it is not the lex specialis to the situation in question), it is open to the parties to dispute this and defend their actions by saying that it does. More and more, the famous quote from Baxter (‘the first line of defense against international humanitarian law is to deny that it applies at all”) may equally be turned on its head to read: “the first line of defence against international human rights law is to say that international humanitarian law applies”.
An alternative approach?
Alternative legal frameworks are of course possible and should be considered. For example, it would be possible for only the provisions of international humanitarian law which apply to protective persons – the body of law which is often called Geneva law – to apply throughout the country, and for the law relating to hostilities to be restricted to the areas of the country in which combat take place.
It is noteworthy that the original Tadic Jurisdiction Decision (which is so often cited to support international humanitarian law applying throughout the whole country) actually seems have suggested that there should be a different geographical scope for the law relating to the conduct of hostilities than for the law relating to protected persons.
The Court stated:
“Although the Geneva Conventions are silent as to the geographical scope of international “armed conflicts”, the provisions suggest that at least some of the provisions of the Conventions apply to the entire territory of the Parties to the conflict, not just to the vicinity of the hostilities. Certainly, some of the provisions are clearly bound up with the hostilities and the geographical scope of those provisions should be so limited. Others, particularly those relating to the protection of prisoner of war and civilians, are not so limited [my emphasis]” (para 68).
But the Appeal Chamber’s suggestion in this respect seems to have been forgotten in favour of a broader conclusion – supported by a later paragraph of the judgement (cited above) – that international humanitarian law in toto should apply throughout the whole territory. Successive trial chambers have consistently overlooked this earlier passage and followed the Kunarac Appeal Judgement (see above) that confirms that a violation of the laws or customs of war may occur at a time when and in a place where no fighting is actually taking place (See Droege article listed below for a discussion of these cases and issues, p535).
So as a matter of law, the position in the jurisprudence of the ICTY seems settled: in both international and non-international armed conflicts, the whole body of international humanitarian law applies throughout the entire country, even if the fighting itself is localized as it was in Syria in the early stagse of the conflict.
Would a change to the legal framework be desirable?
Do the statements by the President of the ICRC and the High Commissioner for Human Rights suggest that the ICRC’s approach to such matters is an approach is changing? And would such a change be welcome? To explore this question fully would require more attention than is possible within the context of this blog post which is already too long, but a few initial remarks are made below.
A potential advantage of an approach which limits the delineation of a non-international armed conflict in legal terms to a specific area of the country is that it may prevent hostilities spreading to other areas of the territory. In Syria, peaceful protests in some areas of the country were met with a military response which the regime justified by the fighting elsewhere. Very quickly, the State labelled all the protestors ‘armed groups’ and in doing so tried to legitimate their military response against them. If the scope of international humanitarian law – or at least the body of rules relating to the conduct of hostilities which permits the targeting of members of armed groups or civilians directly participating in hostilities – is strictly limited to areas in which there is real fighting, it could assist in preventing the escalation of force in areas far from existing hostilities.
But the problem with such an approach is that it produces more troublesome results when applied to non-human objects. What would happen, for example, if the armed opposition group had its command centre or munitions store far from the area in which the hostilities are taking place? If the law relating to hostilities is restricted to the active battlefield, such locations would no longer be legitimate military targets for the State. Herein lies the major problem with strictly and formally restricting the application of the law on conduct of hostilities to the zone of hostilities because it is unrealistic to expect a State to ignore the presence of rebel strategic command centres positioned away from the active frontlines.
The current legal framework is undoubtedly not perfect but one of its advantages is that it offers the flexibility of allowing the human rights framework and the international humanitarian law framework to coexist, in a manner appropriate to the circumstances.
In instances where State conducts operations far from the battlefield, its acts will most likely be governed by a law enforcement framework rather the rules relating to the conduct of hostilities. As a result, in the early stages of a non-international armed conflict many areas of the country will retain the international human rights law as their primary paradigm despite the fact that other parts of the country are in full scale hostilities. In that sense, the resulting legal landscape may end up looking similar to how it would look if the law relating to conduct of hostilities was only locally applied in the conflict zones, with the only difference that it allows for more flexibility.
Daniel Cahen, the ICRC legal advisor writing on Lawfare blog, stated that it was this parallel application of legal regimes which the ICRC was referring to when it talked about ‘localised armed conflicts’. He said:
I believe that the reason why my colleague insisted on particular flashpoints of armed violence such as Homs, Idlib and Hamawas to indicate that IHL/LOAC is not the only framework applicable in Syria. Civilian protests still continue in Syria and it is certainly worth recalling that measures taken in relation to civilian demonstrators must comply with the least harmful paradigm found in the international human rights law standard governing the use of force in law enforcement operations.
While this explanation does not entirely explain Dr Kellenberg’s words that the criteria for a non-international armed conflict were not met in parts of the country, it does explain why the application of international humanitarian law may appear to be localised in the earlier stages of an armed conflict.
While this post has shown that the existing legal framework is to be preferred over a more localised application of international humanitarian law, it is clear that many challenges remain. There is a significant lack of consensus among commentators about many aspects of the current legal framework that applies to non-international armed conflicts. Even the notion that international human rights law can be the lex specialis is disputed by some commentators. And for those that agree that it can, there remains a considerable lack of clarity on how it should be determined which law is the lex specialis in a given situation. Clearly care must be taken to find objective indicators which are resilient to manipulation by interested parties (see articles by Droege and Prud’homme for further reading on this). There is also a lack of consensus on the extent to which the principle of ‘military necessity’ exercises a restraining effect on the exercise of lethal force in the international humanitarian law paradigms? This was one of the ICRC’s recommendations in its interpretative guidance on the direct participation of hostilities, but its validity is far from universally accepted (Schmitt, p39-43).
The resolution of these questions is vital to avoid uncertainty in the legal framework. While their exploration is too much for this post, they are all topics on which we would welcome readers’ thoughts in the future.
Further reading on these topics which is referred to in this post:-
Droege, Cordula, Elective Affinities? Human Rights and Humanitarian Law, International Review of the Red Cross, Vol 90, Number 871, September 2008
Prud’homme, Nancie, Lex specialis: oversimplifying a more complex and multi-faceted relationship?, Israel Law Review, Vol. 40 (2)(2007)
Schmitt, Michael N, The Interpretive Guidance on the Notion of Direct Participation in Hostilities: A Critical Analysis, Harvard Law School National Security Journal, Vol I, May 5th 2010