The Syrian Civil War and the Achilles' heel of the law of non-international armed conflict.

• Author: Ruys, Tom

The insistence of the Assad regime on treating members of non-State armed groups as terrorists that may receive grave sentences, and even the death penalty, upon capture may go some way in explaining the endemic disregard for the laws of war by all parties in the Syrian Civil War. It is broadly recognized that the threat of the death penalty for mere participation in hostilities greatly reduces the incentives for rebel groups to comply with the law of armed conflict. The central thesis of the present contribution is that, under certain conditions, non-State armed groups must be granted combatant-like status without this being conditioned on the ad hoc consent of the de jure government. Clearly this position raises a host of questions, several of which were also raised during the 1949 Geneva Conference. If they were ultimately left unanswered at that time, the excesses of recent conflicts, such as that in Syria, stand as proof that the time is ripe to revisit the matter.

KEYWORDS: Law of Armed Conflict, Non-international Armed Conflict, International Humanitarian Law, Combatant Status, Syrian Civil War, Prisoner of War

INTRODUCTION I. THE SYRIAN CIVIL WAR AND THE ACHILLES' HEEL OF THE LAW OF NON-INTERNATIONAL ARMED CONFLICT A. The Syrian Civil War--General Overview B. Executions by Government and Anti-Government Forces II. THE STATUS OF NON-STATE ARMED GROUPS IN NON-INTERNATIONAL ARMED CONFLICT A. Recognition of Belligerency B. The Geneva Conventions and the Additional Protocols 1. The 1949 Geneva Conference and the Treatment of Non-International Armed Conflicts 2. The Prosecution of Insurgents and the Preparatory Works of AP II C. Ad Hoc Attempts to Bridge the Gap III. BACK TO THE DRAWING BOARD A. A Delicate Balance B. What Should Trigger the Doctrine's Application? C. What Protection Should Be Accorded? D. How to Introduce this New Regime? CONCLUSION INTRODUCTION

Non-international armed conflicts (NLACs) are said to constitute "the most frequent and cruelest form of armed conflict." (1) NIACs, however, have long been under-regulated and under-examined (2) because of the reluctance of States to acknowledge that a situation of violence amounts to an armed conflict, (3) triggering the application of the law of armed conflict (4) (LOAC), and an unwillingness to grant legitimacy to armed groups operating on their soil. Up until the adoption of the Second Additional Protocol to the Geneva Conventions (AP II) in 1977, NIACs were only expressly governed by a single treaty provision, Article 3, common to all four Geneva Conventions (Common Article 3). (5) This imbalance has partially been remedied over the past years. The normative framework governing NLACs has expanded considerably, both as a result of the adoption of AP II in 1977, (6) and as a result of the emergence and crystallization of customary international law in this area. (7) Furthermore, with the development of international criminal law and the advent of the International Criminal Court (ICC), prospects for the enforcement of violations in NIACs have improved. Simultaneously, academic attention has increased as several tomes now engage the law of non-international armed conflict in an in-depth manner. (8)

And yet, as the focus has shifted to questions relating to the detention of unlawful combatants (9) and questions of conflict classification, (10) one would almost forget that the edifice of the law of non-international armed conflict remains unfinished. A fundamental flaw indeed remains, which structurally undermines the compliance pull of the legal framework.

As is well-known, in international armed conflicts, lawful combatants, who fall within one of the categories spelled out in Article 4(a) Geneva Convention III, (11) enjoy the so-called "combatant privilege." This implies that they have a recognized right to take direct part in hostilities and cannot be punished merely for doing so. In addition, upon capture, they will enjoy prisoner of war (POW) status and the far-reaching protection offered by the Third Geneva Convention. (12) At the close of hostilities, they must be repatriated. By contrast, in the current state of the law, organized armed groups taking direct part in a NIAC--irrespective of the intensity or duration of that conflict--are not granted the combatant privilege, nor are they granted POW or similar treatment upon capture. (13) Quite the contrary, LOAC condones State prosecution and punishment of members of non-State armed groups (NSAGs) (14) taking part in the conflict for committing offences under domestic penal law, even if they fully comply with LOAC (e.g., the killing of a member of the regular armed forces in combat will generally be qualified as murder under domestic criminal law). Moreover, LOAC accepts the imposition of the death sentence upon members of NSAGs, at least insofar as domestic law foresees this possibility. Common Article 3 of the Geneva Conventions (GC) merely requires that the judgment be pronounced by a "regularly constituted court" affording minimum judicial guarantees. (15) In turn, Article 6 of AP II, if applicable, provides for a series of judicial guarantees, but only bans the death sentence in relation to minors. (16) International human rights law, which continues to apply during armed conflicts insofar as it is not set aside by the lex specialis of LOAC, (17) does not alter the foregoing. There indeed exists no general rule of international human rights law that prohibits the death penalty (notably, even those specific treaty instruments that provide for an abolition of the death penalty concede that States may continue to apply the death penalty with respect to acts committed at war). (18)

It is true, as will be observed below, that on a handful of occasions States fighting rebel forces have accepted them as lawful combatants by recognizing a situation of belligerency. Throughout the Charter era, a similar result has at times been brought about by unilateral commitments or by bilateral agreements between the fighting forces. In the end, however, States are not legally obliged to grant such concessions and, in many large-scale NIACs, no combatant privilege was afforded to members of the armed group.

The Syrian Civil War is a prime example. In December 2011, the Assad regime introduced a new law recommending the death penalty for anyone found arming "terrorists." (19) And in July 2012, Syria passed three new counter-terrorism laws, which stipulate that:

Those who create or direct terrorist groups may be sentenced with 10 to 20 years of hard labor, but the punishment may be more severe if the goal is to change the regime or the structure of the state. If these (terrorist) acts result in death or disability for the victims, the death sentence may be imposed. (20) The regime has set up a terrorism court as well as various military field courts, both of which may confer capital sentences. (21)

In spite of the foregoing, it is widely recognized that immunity from prosecution for taking part in hostilities is a crucial incentive for compliance with the law of non-international armed conflict. (22) Rebel fighters in a civil war who know that they will face grave sentences, and even the death penalty, upon being captured--irrespective of whether or not they abide by the laws of war--have little incentive to fully comply with those laws. (23) For such rebels, the law is all sticks and no carrots, and victory at any cost may be perceived as the only way to ensure their survival. It is a regrettable reality of civil war, that when such rebel forces capture members of the regular armed forces, they may inflict upon them the same fate which their captured comrades undergo. As Vattel warned in 1758, "[I]f the Sovereign believes he is entitled to make prisoners hang, as rebels, the opposing party will have recourse to reprisals.... The Civil War will become cruel, terrible and ever more fatal to the Nation." (24) In sum, the non-recognition of the combatant privilege on the part of rebel fighters--and, in particular, their exposure to heavy sentences solely on the basis of their taking part in the armed conflict--greatly reduces their incentive to comply with LOAC. This, in turn, is likely to instill less incentive to comply on the part of the State armed forces. The result, as illustrated by the widespread massacres and other war crimes committed by all sides in the Syrian Civil War, is a downward spiral characterized by increased disregard for the laws of war and for the fate of the civilian population, further embedding the deep feelings of hostility between the opposing sides and making a political solution all the harder to reach.

The central thesis of this Article is that in cases of full-scale civil war between a de jure government and one or more NSAGs, where rebel groups control substantial parts of the State's territory and are able and willing to comply with LOAC, they should be accorded a combatant-like status. Crucially, granting such status should no longer be made contingent on the ad hoc consent of the de jure government. Part I briefly explains how the Syrian Civil War illustrates a fundamental weakness in the law of non-international armed conflict. Part II analyzes how LOAC has dealt with the status of NSAGs until the present, addressing in particular the recognition of belligerency doctrine, the preparatory works of the Geneva Conventions and AP II, and ad hoc arrangements in NLACs. Part III makes the case for a further evolution of LOAC in this context and lists various tentative suggestions as to what a possible solution could look like.

1. THE SYRIAN CIVIL WAR AND THE ACHILLES' HEEL OF THE LAW OF NON-INTERNATIONAL ARMED CONFLICT

   1. The Syrian Civil War--General Overview

      The war began as an uprising in March 2011 and as a part of the wider Arab Spring protest movement, during which Syrians took to the street to demand the resignation of President Bashar Assad. As the Syrian army...