Syria and International Law

If your views on the conflict in Syria have you come down on the side of Pol Pot, you are doing something very, very wrong

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Confusing the Jus ad bellum and the Jus in bello II

Jennifer Moore argues over at the OUPblog that “The 1949 Geneva Conventions do not justify US missile strikes in Syria in response to chemical weapons attacks on the civilian population.” Well…yes, given that the Geneva Conventions govern how armed forces and civilians are to be treated during a war and NOT the justification for going to war, she is correct.

The 1949 Geneva Conventions do not justify US missile strikes in Syria in response to chemical weapons attacks on the civilian population – See more at: http://blog.oup.com/2013/09/syria-us-military-strikes-international-law-pil/#sthash.M0vXtYZF.dpuf
The 1949 Geneva Conventions do not justify US missile strikes in Syria in response to chemical weapons attacks on the civilian population – See more at: http://blog.oup.com/2013/09/syria-us-military-strikes-international-law-pil/#sthash.M0vXtYZF.dpuf

International Human Rights Law and War Crimes

Clive Baldwin of Human Rights Watch has written a piece in yesterday’s Guardian entitled “Syria is bound by the laws of war.” Though I agree with much in this article, I’m not so sure about this claim:

“A key area in which many abuses take place in conflict is in the treatment of detainees, and so application of the law is critically needed here. Both IHL and international human rights law – which continues to apply at all times – protect all detainees, strictly prohibiting executions, torture and other abuse. The most fundamental principles of human rights law apply even during genuine emergencies, including the requirements that all detention is subject to judicial review and that only courts of law may try and convict people.”

First, it’s not obvious that international human rights law does continue to apply in times of war because of the law of occupation. Second, IHL already prohibits things like executions, torture, and many other abuses through the grave breaches provisions of the Geneva Conventions and expanded war crimes provisions of the ICC

Who Decides When a Civil War Begins?

An article posted on the PBS Newshour web site http://www.pbs.org/newshour/extra/features/world/july-dec12/syria_07-17.html claimed:

The International Committee of the Red Cross (ICRC), a Geneva, Switzerland-based organization dedicated to protecting victims of armed conflict and providing humanitarian aid, is the group tasked with officially declaring that a conflict has met the qualifications for civil war. The ICRC holds this responsibility because of its position as the keeper of the Geneva Conventions.

This is not the case. The ICRC’s claim is not a legal decision bringing IHL into force. IHL comes into force when such a conflict takes on certain characteristics such as when a certain level of protracted violence has been reached.

That this claim is met is an empirical question determined by the  facts on the ground – regardless of what anyone says . Even if the ICRC did not say an armed conflict existed this would not change the facts on the ground. And it happens to be true in this case. Thus, at least, Common Article 3 of the Geneva Conventions applies in the case of Syria

However, It does not seem to be the case that an Additional Protocol II conflict exists. The Free Syrian Army (FSA), though is may be under a responsible command, does not appear to hold enough territory to make the conflict qualify.

Nonetheless, the ICRC’s claim that a civil war is in progress and that therefore IHL applies does lend credibility to those who make this claim.

What is an interesting question is at what point does/has this conflict become internationalized.