Syria’s Brave “Criminals”

by MELODY GOODWIN

I recently had the chance to attend the International Humanitarian Law Workshop, co-sponsored by ASU’s Center for Law and Global Affairs and the American Red Cross Grand Canyon Chapter of the International Committee of the Red Cross (ICRC).¹ Throughout the workshop, I tried to understand the real world effects and relevance of International Humanitarian Law (IHL), so I could not help but apply its ideas to the situation in Syria today.

IHL is also known as the law of war, as it is the law that governs armed conflict. IHL is principally provided by the four Geneva Conventions and their two Additional Protocols. While no law is unambiguous, IHL is particularly complicated with regard to non-international armed conflicts (NIAC), commonly known as civil wars. Although the Additional Protocols provide some clarification regarding situations of NIAC, many countries including Syria are not party to the protocols and are therefore not bound by their provisions.

The ICRC is the only institution explicitly authorized by the Geneva Conventions as a guardian of humanitarian law. The ICRC has the power and the responsibility to determine when conflicts rise to a level that is governed by IHL. Accordingly, over the summer the ICRC officially declared the situation in Syria to be a non-international armed conflict (NIAC). Such labels have no practical meaningful effect on the situation on the ground. The violence and the killings did not change from the days before to the days after the NIAC declaration. However, labeling the Syrian conflict an official NIAC does have an effect on the legal status of individual actors.

Essentially, IHL puts people into two categories, each with its own rights and obligations. A person is either a combatant, typically a state actor, someone who is authorized to kill; or a person is a civilian, someone who is not authorized to engage in hostilities. Consequently, unlike civilians, military personnel have the right to kill and are legitimate targets in war.

However, in the context of NIAC, these categories are complicated by non-state, non-government actors, like the armed opposition members in Syria, who do not necessarily legally qualify as “combatants.” Rather, IHL considers the opposition members to be criminals who are violating state laws. Notwithstanding the fact that grave human rights violations are committed by regime forces, the government forces fall into the category of legitimate combatants, whereas the opposition forces do not.

Amid the daily horrors and spiraling chaos of the Syrian conflict, the question of whether or not opposition members are deemed combatants seems like an arrogant exercise in semantics. Nor does the distinction seem relevant when non-hostile civilians, including women and children, are killed and brutally tortured.

However, within the legal framework of IHL, the participants’ status has many significant ramifications. In post-conflict resolutions, violators of human rights and IHL will ideally be held accountable. The combatant status of the regime’s forces gives them certain legal protections, while the opposition fighters, or so-called criminals, are left exposed in a dubious position. From the legality of hostile actions to rights as captured prisoners, the combatant status offers the regime forces privileges over the opposition fighters.

Besides the effects on the rights of individual fighters, the distinction also has political implications. The lack of legal recognition of the opposition fighters gives President Bashar Al Assad a pretext safeguard against international intervention, and it reinforces his standing in the eyes of his supporters.

In addition to its intended purpose of regulating warfare, IHL also functions to maintain political stability and perpetuate the existing power structures worldwide by legitimizing state actors and delegitimizing others. By protecting the regime’s right to suppress rebellion, IHL impedes popular revolution. Although IHL may condemn Assad’s methods or actions, it nonetheless serves to fortify his position.

The goal of IHL has never been to support and stabilize dictators or human rights abusers. The international community needs to rethink how it classifies legitimate but non-state actors to more effectively regulate the realities of modern warfare.