Dr. Nada Al-Duaij
Dr. Eisa Al-Anzi
Abstract
In recent times, Syria has come under intense public scrutiny. This is not unconnected with the wholesome atrocities committed against the civilian population and individuals who have become hors de combat in the ongoing Syrian war. Several cases of grave violations of international humanitarian law have been documented by the United Nations and several observer groups, the purport which leaves much to be seen as to the role of the international community to act decisively in stemming the ugly tides in the region. Yet, Syria is a signatory to many international legal instruments on armed conflicts. Against this backdrop, this paper analysed the broken rules of the Syrian armed conflict in juxtaposition with the UN Security Council’s constraints in resolving the Syrian conflicts. It found that a lot of rules have been broken in the methods of armed conflict in Syria. Yet, the UN Security Council is inhibited by legal constraints in the resolution of Syrian conflicts. The paper suggested, among others, that International Criminal Court should exercise its jurisdiction through referral mechanisms by the UN Security Council in order to make accountable the criminals of war in Syria.
- Introduction
From time immemorial, armed conflicts have been a major feature in the strain of domestic and international relations between State and non-state actors; a situation that has necessitated the establishment of multinational, continental and regional organisations for the purpose of keeping the peace or enforcing compliance with agreed rules of engagement.[1] This underscores the perpetual nature of conflict and the corresponding initiatives taken by States to effectively manage the situation so as to avoid human rights abuses.[2] Nonetheless, warring parties have issues with complying with the Law of Armed Conflict (LOAC) and International human rights law. The purpose of this law is to ensure ‘minimal loss’ of civilian lives, civilian objects and protection of the environment in the course of an armed conflict. To be more specific, the laws regulating armed conflicts include the 1949 Geneva Conventions and their 1977 Additional Protocols and the 1907 Hague Convention. In addition, specific commitments have been made by States to limit the use of certain types of weapons in an armed conflict. These efforts have been translated into formulating legal instruments such as the 1997 Ottawa Convention on the Prohibition of Anti-Personnel Mines, the 2003 Protocol on Explosives Remnants of War (an addendum to the 1980 UN Convention on Certain Conventional Weapons), the 2008 Dublin Treaty Banning Cluster Bombs, among other relevant laws.[3] Syria is a signatory to many of these laws on armed conflicts.
In recent times, however – as was seen in ancient times – States have continued to violate LOAC in spite of persistent calls for restraints by the United Nations and other concerned States.[4] To put this in perspective, the belligerents involved in the Syrian war are a good example of such impunity and carnage. In a bid to validate the above assertion, a 2018 report on the Syrian war by Amnesty International indicts that all parties to the armed conflict have committed war crimes against the nation’s civilian population.[5] It is important to note that previous findings by a team of UN inspectors and media reports confirm the use of lethal methods by the Syrian government, under Bashir Al-Assad, to squash non-violent protests in the southern city of Dar’a; an action that eventually snowballed into a full scale civil war spanning seven years.[6] Consequently, the continued hostilities in Syria has resulted in the deaths of over 465,000 killed in the crossfire, with at least 1 million injured during hostilities and over 1.2 million – about half the country’s population – displaced[7] in addition to cases of enforced disappearance.[8] Yet, the international community’s efforts have not yielded the desired results.[9] The impact of the crisis continues to be devastating.[10]
In view of the foregoing, therefore, this paper is intended to analyse the broken rules of the law of armed conflicts in the Syrian armed conflict in juxtaposition with the UN Security Council’s constraints in resolving the Syrian conflicts. To achieve, the paper is divided into five parts apart from the introduction and the conclusion. The first part examines the nature, origin and development of the Syrian conflicts. The second part will analyse the legal classification of the conflict in Syria. The third segment will identify and discuss the broken rules in the Syrian war. The fourth part will discuss how continued violations of the rules can be prevented in Syria, including the constraints of the United Nations. The fifth part analyses the competence of the International Criminal Court to prosecute the criminals of the Syrian war.
2.0 Nature, Origin and Development of the Conflict in Syria
Undoubtedly, the 2011 Arab sprig played a major role in the Syrian crisis.[11] Nonetheless, the nature and origin of the Syrian conflict require analysis of the remote and immediate causes of the civil war. According to the Association for International Affairs, ‘90% of 22.5 million of the Syrian population are ethnic Arabs, followed by 9% of Kurds and small minorities Armenians, Circassians and Turkmans’.[12] A statistical breakdown of the Syrian demography is as follows: Sunni Muslims (75%), Alawites (12%), Druze (4%), Christians (10%) and a ‘small minority of Ismailis who originate from the Shi’a branch of the Islamic religion’.[13]
As at 2012, the major actors in the conflict include; the regime as led by Bashar al-Assad;[14] and the opposition comprising, the Syrian National Council (SNC),[15] the National Coordination Body for Democratic Change (NCB), Free Syrian Army (FSA),[16] and an amalgam of Christians and Kurds who are not associated with the crackdown of the Assad regime.[17] There is now an amalgam of opposition forces under the aegis of the Syrian National Coalition for Syrian Revolutionary and Opposition Forces, and the Syrian Kurdish Democratic Union Party (PYD).[18] Extremists armed groups such as the Islamic State in Syria, ISIS (also known as the Islamic State and the Levant – ISIL, or simply the Islamic State), and the Al-Nusra Front (an affiliate of the al-Qaeda Network terrorist group).[19]
At the dawn of the Ba’ath Revolution of 1963 and the subsequent coup of 1970, witnessed the ascent to power of Hafez al-Assad – a dictator and member of the Alawite minority group.[20] The regime change gained popularity among the minorities because of shared sentiments and fear of a likely entrenchment of a Sunni-dominated government, and by extension, establishment of a ‘hegemonic Sunni Islamic state’.[21] Since the Ba’ath Revolution, Syria had been grossly divided along sectarian lines in accordance with the divide-and-conquer policy of the Assad regime.[22] Most notably, were the highhanded and ruthless approaches of Hafez al-Assad in repressing dissent and elevating members of his Alawite minority sect over and above others.[23] Therefore, the demographic and political structure of Syria was characterized by marginalization, repression and untold hardship of a vast majority.[24]
The state policy of discrimination and oppression continued unabatedly with the succession of Bashar al-Assad – son of the late Hafez al-Assad – in the year 2000, but markedly distinct in policy statements and affirmative action designed to pacify the opposition.[25] Furthermore, the poor state of the economy necessitated a series of economic reforms by the new dictator which brought about negative consequences.[26] For instance, the neoliberal economic reforms were not only designed to favour the private sector but also concentrated the commonwealth in their hands. The foregoing asymmetric socio-economic conditions led to increased unemployment which inevitably occasioned a widespread clamour for a regime change.[27] Thus, the Arab Spring of 2011 which inspired a ‘copy-cat’ revolution and toppling of other totalitarian regimes like Egypt, Libya, Tunisia and Yemen, offered Syrians an opportunity to actualize the long-desired change they sought.[28]
As a result, a group of young boys were arrested on March 6, 2011 for inscribing anti-government graffiti on a wall in the Southern city of Dar’a.[29] These boys were brutally tortured whilst in custody which led to the death of one. In turn, it prompted their parents, relatives and sympathisers to take to the streets in protest on March 2011.[30] As widely reported by the international media and human rights organisations, these peaceful protests were met with a ‘heavy response’ from the Assad government; an action which caused the deaths of unarmed civilians. A report by the Chatham House aptly describes the appalling situation, to wit:
The protesters continued to hold peaceful demonstrations that were marred by increasing levels of violence on the part of the authorities. Typically, the armed forces would open fire on the crowds, killing dozens of unarmed demonstrators, while other protesters came under sniper fire. Towards the end of April 2011, a large-scale military operation was launched by the army and security forces, as a result of which Dar’a was under siege for two weeks.[31]
Consequently, what started initially as a non-violent protest and the attendant killing of unarmed protesters, snowballed into a full-scale armed conflict between the government forces and several armed opposition groups; thereby setting the stage for the outbreak of the Syrian civil war.[32]
Most intriguing however, is the inherent dynamic and multidimensional nature of the conflict. Asides the general or direct causes of the conflict, other States entered into the war as secondary parties as necessitated by their respective foreign policies and ideological leanings.[33] Corroborating this assertion, Khashanah argues that ‘the revolt was used as an entry point to realign Syria ideologically and geopolitically’.[34] For instance, the ongoing global confrontation between Russia/China/Iran and the U.S. explains their preferences, support and involvement in the Syrian war.[35]
Within the Gulf region lies countries like Saudi Arabia, Qatar, among others. These countries desire to restore Sunni rule in Syria, thus justifying their support for the armed opposition group.[36] Iran, on the other hand, fights on the side of the government because of its shared religious doctrines with the Syrian minority rule. Therefore, the fall of Assad is tantamount to losing a key Shi’a ally in the Sunni-dominated gulf region.[37] The Israeli involvement in the war is driven by the need to bolster its national security by incapacitating Hezbollah, Hamas and Syria from possessing chemical capabilities. Turkey serves as a base for the armed opposition. The Western coalition as led by the U.S. provide non-lethal weapons to one of the ‘moderate’ rebel groups while seizing the opportunity to carry on with its war against terrorist groups like al-Qaeda and the Islamic State in Syria (ISIS).[38]
From an economic perspective, scholars have argued that the Bushehr Memo of 25 June 2011 serves as a useful compass in the quest of unraveling the true agenda of the European Union (E.U.) in the conflict. For example, the Bushehr Memo is a multilateral trade deal which proposes to install an Iran-Iraq-Syria gas pipelines meant to serve as a major source of gas to the European market. By extension however, the deal would equally boost the revenue of the Syrian government.[39]
Therefore, the origin and development of the Syrian war can be summarized in the following; a). failure of the Assad government to unify the Syrian people thereby occasioning political instability; b) unemployment as caused by neoliberal economic reforms and revenue concentrated in the hands of a privileged few; c) the highhandedness and repression of dissenting voices and peaceful protesters; d) eventual outbreak of armed conflict between the opposition and the government armed forces; and e) the battleground used to prosecute proxy wars between other gulf states as well as the ongoing global confrontation principally between Russia/China/Iran and the U.S.[40]The conflict thus requires a legal classification.
3.0 Legal Classification of the Syrian Conflict
By virtue of the pronouncement in Prosecutor v. Tadic, the Appeals Chamber of the International Criminal Tribunal for the former Yugoslavia (ICTY) declares that ‘an armed conflict exists whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State’.[41] Two main categories of armed conflict can be distilled from the above definition, to wit; international armed conflict (IAC) and non-international armed conflict (NIAC).[42] It should be noted that both IAC and NIAC are regulated by IHL;[43] they are hereby analysed hereunder.
- International Armed Conflict
As stated earlier, international armed conflict exists where two or more States engage in hostilities.[44] The applicable law to such armed conflict is Common Article 2 to the 1949 Geneva Conventions which provides that ‘each of the four Conventions shall apply to all cases of declared war or any other armed conflict which may arise between two or more of the High Contracting Parties, even if the State of war is not recognised by one of them’.[45]
The doctrine of jus ad bellum i.e. the law regulating the use of force between States, encapsulates the core principles of Common Article 2 (supra) as espoused by Gasser in the following: ‘any use of armed force by one State against the territory of another triggers the applicability of the Geneva Conventions between the two States…It is also of no concern whether or not the party attacked resists’.[46] Among the situations in which LOAC can be activated with regard to IAC include: partial or total territorial occupation,[47] ‘minor skirmishes’ between States,[48] the use of armed force by a State ‘on the territory of another State with the latter’s consent’,[49] and the support of a State to an Armed Non-State Actor (ANSA) in another State.[50]
- Non-International Armed Conflict
The most widely cited authority on the definition of Non-International Armed Conflict (NIAC) is that provided by ICTY in the Tadic Case. The Appeals Chamber of the ICTY defined NIAC as a ‘situation of regular and intense armed violence between security forces of a State, especially the army, and one or more organized non-governmental armed groups…’[51]. Flowing from this, an armed conflict in a State, therefore, is accorded an NIAC status if it meets the following condition: armed violence must be of a protracted nature, the threshold of hostilities must be intense, and the non-governmental armed group must be organized in such a way that it possesses a command-and-control structure and the capacity to carry out coordinated attacks against government armed forces.[52] Similarly, the combat must be conducted by government forces and at least one organized non-governmental armed group; and lastly, the violence must take place directly between government forces and at least one or more governmental armed groups.[53] In addition, an armed conflict between two or more organized armed groups ‘across an international border’ may also amount to NIAC.[54]
However, Art. 1(2) of the 1977 Additional Protocol II to the 1949 Geneva Conventions clearly distinguishes internal strife in a State from NIAC. It provides that ‘internal disturbances and tensions such as riots, isolated and sporadic acts of violence and other acts of a similar nature, do not amount non-international armed conflict’.[55] Thus, in the case of Prosecutor v. Tadic, the ICTY held, inter alia:
“In an armed conflict of an internal or mixed character, these closely related criteria are used solely for the purpose, as a means, of distinguishing an armed conflict from banditry, unorganised and short-lived insurrections, or terrorist activities, which are not subject to international humanitarian law.”[56]
By way of analogy, therefore, the armed conflict in Syria can be described, in all ramifications, as a non-international armed conflict in that, the ‘primary’ parties to the armed conflict are the Syrian government under Bashar al-Assad, and a coalition of domestic non-governmental armed groups such as Free Syrian Army (FSA), the Islamic State and the Levant (ISIL), among others.[57]
4.0 The Broken Rules of Armed Conflict in the Syrian War
With regard to the means of injuring the enemy and laying sieges and bombardments during hostilities, Article 22 of the 1907 Hague Convention provides that ‘the right of belligerents to adopt means of injuring the enemy is not unlimited’.[58] This goes to show that modern warfare is regulated by specific rules of engagement.[59] It also portrays a reverence for the sanctity of life and dignity of persons. This notion is the precise foundation of Article 1(4) of the 1907 Hague Convention which states that ‘warring parties are obligated to conduct their operations in accordance with the laws and customs of war’.[60]
It should be noted however, that the core philosophical leanings of International Humanitarian Law are hinged on the principles of distinction, proportionality and precaution which are aimed at limiting the use of violence in times of armed conflict by way of protecting ‘persons who are not, or are no longer, directly engaged in hostilities’.[61] In other words, for the purpose of targeting, warring parties are required to distinguish between military objectives and civilian targets as well as civilian objects.[62]
Thus, Article 40 of the San Reno Manual defines military objectives as ‘those objects which by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralisation, in the circumstances ruling at the time, offers a definite military advantage’.[63] On proportionality, the United Nations Human Rights Office of the High Commissioner states that, ‘parties to the conflict are prohibited from launching an attack which may be expected to cause incidental loss of civilian life, injury to civilians, damage to civilian objects, or a combination thereof, which would be excessive (disproportionate) in relation to the concrete and direct military advantage anticipated…’[64] It further states that ‘precaution in attack’ entails that during ‘the conduct of military operations, constant care must be taken to spare the civilian population, civilians and civilian objects…
Unfortunately, the reverse is the case in the ongoing Syrian civil war. It has been widely reported by the United Nations and other independent international media and human rights organisations that all the parties to the Syrian war have committed war crimes and crimes against humanity.[65] These violations are ultravires to the letters and spirit of International Humanitarian Law.[66] In the light of the foregoing therefore, this paper seeks to highlight the broken rules of armed conflict in the ongoing Syrian civil war with a view to suggesting ways of preventing continued violations of the rules.
4.1 Prohibition of Attacks on Civilians
Article 13(2) of the Protocol Additional to the Geneva Conventions, it provides that, ‘the civilian population as such, as well as individual population, shall not be the object of attack. Acts or threats of violence the primary purpose of which is to spread terror among the civilian population are prohibited’.[67]
According to the NGO Physicians for Human Rights, as cited by Amnesty International, the British Broadcast Corporation among others, Syrian and Russian forces carried out airstrikes in broad day light, on a large market in Atareb in the Aleppo province. The aerial bombardment of 13 November, led to deaths of at least 50 people who are mostly civilians. Other airstrikes on civilian targets include those of 18 November in Eastern Ghouta of Damascus, killing at least 14 people, and other ‘indiscriminate attacks and direct attacks on civilians and civilian objects leading to the killing and injury of hundreds…’[68]
Similarly, armed opposition groups are reported to have ‘indiscriminately shelled civilian areas to prolonged sieges, thereby restricting access to humanitarian and medical aid’.[69] The armed terrorist group, ISIS, resorted to ‘unlawful means’ by killing and shelling civilians and using them as human shields.
Cases of sexual violence have equally been documented. For instance, according to the UN Commission of Inquiry confirmed the use of rape as a ‘systematic and widespread method of war in Syria…perpetrated on a large-scale in government detention facilities, alongside ever-increasing incidents of sexual harassment, intimidation and rape of women at checkpoints’.[70] In February 2015, it was reported by the Commission of Inquiry that terrorist groups made use of ‘suicide and car bombs which mostly targeted civilians’.[71]
4.2 Starvation of Civilians
Article 14 of the above instrument, further states that, ‘starvation of civilians as a method of combat is prohibited. It is therefore prohibited to attack, destroy, remove or render useless for that purpose, objects indispensable to the survival of the civilian population such as food-stuffs, agricultural areas for the production of food-stuffs, crops, livestock, drinking water installations and supplies and irrigation works’.[72]
The Amnesty International report as cited earlier, confirms the indiscriminate shelling of civilian areas to prolonged sieges by the armed opposition groups.[73] The report further states that access to humanitarian and medical aid was restricted by the chief parties to the conflict.
4.3 Inviolability of the Cultural Objects and Places of Worship
Article 16 of the above Protocol has equally been violated. It provides for the protection of cultural objects and places of worship during armed conflict. Copious instances abound evidencing this breach of International Humanitarian Law. The content of a recent report by Amnesty International is reproduced hereto: ‘The incidents documented represent just a fraction of these unlawful attacks, which have killed and injured scores of civilians and damaged or destroyed apartment buildings, schools, schools, hospitals, mosques and ambulances…’[74] Furthermore, about a quarter of schools in Syria (at an estimate of over 4,000) were ‘damaged, destroyed or used for other purposes’.[75] Similarly, between February 2014 and February 2015, over ’83 separate attacks on health facilities were recorded…with more than 172 medical personnel killed’.[76]
4.4. Humane Treatment of the Prisoners of War
Article 4 of the 1907 Hague Convention states that ‘prisoners of war are in the power of the hostile government, but not of the individuals or corps who capture them. They must be humanely treated…’[77]
Reports and strong evidence have been tendered to confirm the violation of the above rule. For instance, tens of thousands of detainees, reported by Amnesty International, The Human Rights Watch among others, are regularly subjected to torture or ill-treatment thereby leading to the deaths of some captives. Reports also confirm that ISIS massacred a significant proportion of civilian life by way of shelling and using them as human shields.[78]
4.5 Prohibition of the Use of Chemical/Poisonous Weapons
Most importantly, Article 23 of the above instrument, expressly prohibits the use of poisonous weapons during hostilities. It provides as follows: ‘In addition to prohibitions provided by special conventions, it is especially forbidden; (a) to employ poison or poisoned weapons…’[79]
The April 4 aerial attack on Khan Sheikhoun in the Idleb Countryside of Syria, was reported by undisputable sources which confirm the use of chemical weapons by parties to the conflict, causing the deaths of more than 70 civilians and injuring hundreds.[80] Also, the Organisation for the Prohibition of Chemical Weapons confirmed that casualties in the Khan Sheikhoun chemical weapons attack were ‘exposed to sarin, a banned nerve agent’ by International Law Treaties.[81] These victims were reported to shown symptoms such as miosis, excessive secretions, shortness of breath and convulsions consistent with exposure to a nerve agent.[82]
4.6 Pillaging of Town or Place
Article 28 precludes warring parties to an armed conflict from ‘pillaging a town or place, even when taken by assault…’[83]From Aleppo, to Ghouta and other targeted areas, reveal concrete evidence of prolonged sieges and pillaging of civilian settlements, thereby causing the displacement of several thousands of civilians from battlegrounds and other flashpoints of war. According to Amnesty International and other independent international media organisations, the ongoing armed conflict in Syria has caused collateral damage, causing the deaths of a staggered figure from over 350, 000 to 400, 000 people and has displaced more than 11 million people within and outside Syria.[84]
5.0 Preventing the Continued Violation of the Rules of Armed Conflict
Scholars and multinational organisations have suggested ways of preventing repeated violations IHL. Regardless of the measures taken to ensure the foregoing, all parties to an armed conflict are obligated to respect existing international instruments governing or regulating armed conflict.[85] This is contained under Article 1 Common to the Four Geneva Conventions of which States undertake to ‘respect and ensure respect for these conventions in ‘all circumstances’.[86] The international community is yet to reach a precise consensus on the Syrian question as certain States continue to act as a clog in the wheel of progress.
In his view, Abass maintains that an end to the hostilities in Syria can be achieved under three ‘arenas’ to wit; Syria, the Arab League, and Western intervention. He further states that the most effective of stemming the tides of gross violations in the ongoing Syrian conflict is intervention by the Gulf States through the Arab League (a regional organisation of Arab States) in November 2011.[87] It should be noted however, that the Syrian conflict remains at a stalemate in spite of the suspension of Syria from the Arab League and its concomitant heavy economic sanctions.[88]
On the other hand, several conventional approaches for improving compliance with LOAC have been suggested in some quarters.[89] They include but not limited to ‘dissemination and training, naming and shaming violators of LOAC, pursuing individual criminal and state responsibility, imposing targeted sanctions as well as engaging with violating parties in a bid to assist them in correcting their misdeeds’.[90] It has also been canvassed that LOAC principles and rules be incorporated into ‘military manuals and operational orders and directives’ of armed forces in States, in addition to creating ‘internal investigative and disciplinary mechanisms’.[91]
Be that as it may, the singular most effective means of guarding against IHL and human rights violations in the ongoing Syrian is simply and squarely, by military intervention by a coalition of States as spearheaded by the United Nations and affirmative action by the UN Security Council to impose stiff sanctions on the Assad regime among other similar measures.[92] This paper argues in favour of prompt military intervention in view of several failed attempts by the international community to broker peace in the region. For instance, the late Kofi Annan had to resign as a Special Envoy for the UN and the Arab League in August 2012 because of ‘lack of unity’ in the UN Security Council and ‘reluctance of the two sides to the conflict to end the violence’.[93] Implementing the military option however, is not as easy as it seems especially in view of the sectarian character of the Syrian conflict.[94] Therefore, the transitional government may even pose a greater challenge to the international community as have been recorded in a similar intervention in Libya. The lack of inclusiveness and cohesion between the opposition groups may lead to protracted sectarian violence and continued repression in Syria.
Furthermore, some scholars are of the view that a possible military intervention in the conflict may ‘incense’ States like Russia, China and Iran which may compound the already fragile inter-state relations among certain powerful states (Russia/China/Iran versus the United States of America and its allies) and by extension, a possible outbreak a Third World War.[95] It is the position of this paper that the foregoing fears will not materialise if concrete steps are taken to guarantee Russia’s strategic interest in Syria.[96]
In a different perspective, however, the asymmetrical nature of the conflict has necessitated comments suggesting inter alia, that the opposition forces should be strengthened adequately with ammunition and personnel through ‘covert deployment of special forces, securing areas for the training and equipping the FSA in secured areas, weakening Assad’s military capabilities by way of an arms embargo enforced by naval forces and ground troops and invasion by a coalition by individual NATO States in conjunction with the Gulf States’.[97]
It is an agreeable fact that the doctrines of ‘consent’ and ‘sovereignty’ in international law, though sacrosanct, may be vacated in response to overwhelming circumstances as dictated by severe situations of human rights abuses and violation of the rules of International Humanitarian Law. This is the underpinning philosophy of the Responsibility to Protect (R2P) – a global commitment adopted at the 2005 United Nations World Summit.[98] According to the International Committee of the Red Cross (ICRC), methods such as mounting ‘diplomatic pressure on violating states, releasing official public denunciations of the violation, refusal to recognise the state of affairs politically through withdrawal of aid or assistance, adopting coercive measures against violating states, granting of immunity or amnesty to combatants from prosecution’[99] are effective in ensuring compliance with IHL in a non-international armed conflict situation. In addition, however, the author argues in favour of holding those responsible for war crimes and crimes against humanity in Syria to account.[100] This can be achieved via a referral to the Prosecutor of the International Criminal Court (ICC) or strengthening a local judiciary structure to try alleged criminals of war.
In summary therefore, this paper proposes a comprehensive military strategy which is in congruent with some of the recommendations made by the Carnegie Centre. They include but not limited to the following measures: ‘encouraging the expansion of the Syrian opposition base of representation, strengthening the Syrian opposition’s governance capacity, commencing a dialogue with a critical mass of the national army, engaging Russia in dialogue about a transition from Assad’s regime, cooperating with Gulf States to halt external support to Jihadist groups conducting hostilities in Syria, among others’.[101] Thus, this strategy will pan out positively provided states like Russia and China align themselves with the international community in an effort to effectively bring the violent armed conflict in Syria to an end, and by extension, protecting civilian lives and civilian objects.
5.1 The United Nations Constraints in the Resolution of Syrian Conflicts
Under Chapter VII of the UN Charter, the Security Council is mandated to ‘maintain international peace and security’. It is in keeping with this obligation that the doctrine of ‘Responsibility to Protect’ was evolved as a panacea to the perennial legal contentions on issues of sovereignty and consent in international law.[102] The Syrian conflict presents yet another litmus test to the efficacy of R2P and unity of purpose of the Security Council towards keeping the peace as well as protecting civilian life in Syria. Therefore, the role of the UN in the Syrian conflict can be viewed from different perspectives as expressed by scholars and stakeholders based on their respective backgrounds.
As a responsible international body, the UN made its first official public statement on the Syrian war precisely on August, 2011.[103] The statement enjoined all the parties to the conflict to refrain from attacks against civilians and state institutions while reaffirming the Security Council’s commitment to the ‘sovereignty, independence and territorial integrity of Syria’.[104] Since the outbreak of the civil war, the United Nations has made several ‘diplomatic interventions’ which turned out to be largely unsuccessful due largely to the role played by Russia and China in vetoing specific UNSC resolutions designed to bring about a ceasefire in Syria.[105] At this juncture, it is necessary to highlight some of the actions taken by the United Nations to ensure peace and security in the ongoing Syrian conflict.
On February 2012, a majority Security Council resolution in favour of ‘multilateral sanctions’ over Syria was vetoed by Russia and China.[106] As a result of the legal encumbrance in securing a Security Council-backed intervention, other organs of the UN have risen to the occasion by establishing mechanisms for a sustained action in Syria. For instance, the UNHCR established the Independent Commission of Inquiry for the purpose of ‘documenting grave violations of human rights’.[107] On February 2012, The General Assembly also passed 7 resolutions in furtherance of the mandate of the UN; it drew support from137 member states. Bashar al-Assad agreed to plan of the Special Envoy of the UN and the Arab League, Kofi Annan, which included a ‘ceasefire, withdrawal of government troops and tanks from cities, release of political detainees, freedom of movement for journalists, freedom of association and the right to demonstrate, provision of humanitarian assistance to besieged’ among others.[108]
The Security Council adopted its first resolution (UNSCR 2042) on April authorising the deployment of an observer team which was later transformed into a full-scale UN Supervision Mission (UNSMIS) on 21 April, mandated to monitor the ‘ceasefire and implementation of the Kofi Annan plan in line with UNSCR 2043’.[109] On 30 June, the Geneva Communique was assented by participating states which led to the establishment of the International Action Group composed of ‘the Secretaries-General of the UN and Arab League, Foreign Ministers of China, France, Russia, United Kingdom, U.S., Turkey and other concerned states’.[110]
Sliding back into a stalemate, Russia and China vetoed a Security Council resolution on 19 July 2012, designed to implement diplomatic initiatives to end mass atrocities in Syria.[111] However, in the wake of increased hostilities in the Syrian war fueled by the use of ‘outlawed weapons of mass destruction’, the Security Council passed a unanimous decision (UNSCR 2118) for the purpose of investigating the allegations leveled against the parties to the conflict. The findings of the investigation team confirmed the existence of ‘clear and convincing evidence of chemical weapons use in Syria’.[112] The action is premised on the mandate of the Security Council under Chapter VII of the UN Charter which affirms that ‘the proliferation of nuclear, chemical and biological weapons and their means of delivery constitutes a threat to international peace and security’.[113]
Another resolution was adopted by the Security Council (UNSCR 2139) on 22 February 2014. The resolution was an urgent call on the parties to the conflict to grant access to humanitarian aid, and to cease attacks against civilians, end arbitrary detention, kidnapping and torture, and lift sieges of populated areas.[114] Similar actions were taken by the UN to restore peace and political stability in Syria. Kofi Annan resigned as Special Envoy to the UN and the Arab League sequel to the failure of The Geneva II talks convened on 22 January 2014. Leila Hilal offers an explanation on the reasons for the failure of the Geneva II convention:
The failure of the Geneva II talks can be attributed to poor timing, the exclusion of key Syrian representatives, and an inappropriate format. The interim period saw a continuation of international policies to either arm disparate insurgent forces or back the Assad government at all costs, which precluded diplomacy needed to shore up regional and global agreement for a transition.[115]
Perhaps, the initiative taken by France to draft a resolution which demanded for a referral of the Syrian situation to the ICC for investigation would have contributed significantly in solving the conflict. The draft resolution was again vetoed by Russia and China on 22 May 2015. The UN-mediated Peace Talks (Geneva III) is one of the recent steps taken by the UN to keep the peace in Syria.
A perusal of the above highlights of the role played by the UN in the Syrian conflict, evidences the fact that they were largely limited by the veto powers of Russia and China on the one hand, and Russia’s military intervention on the other. Several calls have been made for a review of the voting pattern in the Security Council in respect of gross human rights violations, war crimes and crimes against humanity. It is important to state that the ‘intended purpose’ of the first Security Council meeting in London on January 1946 was to not only ‘guard the peace and stability of the post-war order, but to protect the weak and vulnerable…’[116]
The facts show that Russia and China have on four occasions used their veto power to nullify UNSC resolutions aimed at curbing mass atrocities in Syria. For this reason, Simon Adams argues that such veto has ‘strengthened and encouraged the expansion of war crimes and crimes against humanity’.[117] He further explains the political atmosphere in the Security Council with regard to Syria in the following:
In a situation where atrocities were already being perpetrated, the Security was divided between a majority who wanted a vigorous response in keeping with R2P and a veto-wielding minority who did not, while the influencing IBSA member states appeared to be abstaining, both literally and figuratively, from the process of finding a solution.[118]
He further argues that Responsibility to Protect (R2P) is an international norm devoid of an ‘independent agency’ to carry out its mandate. In his view, therefore, he believes the reason for the failure of the UN to end atrocities and protect civilians in Syria is not suggestive of an R2P failure, but of the ‘imperfect actors and institutions charged with its implementation’.[119] This paper therefore argues that, Russian military intervention in Syria may not necessarily be responsible for the limitation of the UN in discharging its mandate to maintain international peace and security. Rather, the veto mechanism of the UN Security Council is largely responsible for the Syrian debacle.
5.2 The Competence of the International Criminal Court to Prosecute Criminals of War in Syria
The International Criminal Court (ICC) is the judiciary authority that has jurisdiction over crimes such as genocide, war crimes, crimes against humanity and aggression. It was established by the Rome Statute which came into force on 1 July, 2002.[120] Principles such as ‘Complementarity’ and the ‘Third Trigger’ empower the Prosecutor to act in a bid to bringing those responsible for crimes under its jurisdiction to account.[121]
Generally, the jurisdiction of the Court is not applicable to states that are signatories to the Rome Statute. This is in honour of the need to respect the sovereignty and territorial integrity of a state. In this context, therefore, the ICC is not competent to exercise jurisdiction over allegations of war crimes and crimes against humanity in the ongoing Syrian conflict. Scholars have argued in favour of this position. Nevertheless, this paper argues that the ICC has competent jurisdiction to prosecute criminals of war in Syria in the following reasons:
It is recondite within the parlance of international law that the United Nations is the sole legal entity mandated to maintain international peace and security as contained under Chapter VII of the UN Charter. Therefore, the question of state sovereignty will not arise if the UN deems it fit or better still, is convinced that grave atrocities have been committed within the territory of a non-signatory to the Rome Statute.[122] One of the ways of enabling the court’s jurisdiction in Syria is by virtue of an ‘ICC Referral”. This is the position of the law irrespective of the current confrontations between members of the UN Security Council. The ICC Referral mechanism has been triggered by the Security Council in countries like Darfur (2005) and Libya (2011).[123]
In addition, a similar resolution was reached to refer the Syrian situation to the ICC which was vetoed by Russia and China. It is equally instructive to state that the need for an ICC referral to prosecute criminals of war in Syria has received popular support from state parties. According to the Human Rights Watch, Security Council members like France, the U.K., Luxembourg, Argentina, Australia and South Korea, in addition to the Arab League among other states, are in support of employing the ICC Referral mechanism. This goes to show the moral acceptance of an ICC Referral as the singular most effective way to hold war criminals to account. This position is without prejudice to the suggestion for an alternate court system to handle the Syrian situation. This paper however maintains that, the ICC remains the effective judicial authority to exercise jurisdiction in Syria in view of evidence to show the government’s unwillingness to prosecute accused persons in the rank and file of its government.
Besides, Article 93(10) of the Rome Statute authorises the ICC provide assistance to both state and non-parties in prosecuting crimes under its jurisdiction or a serious crime under the state’s national law.[124] From the foregoing, therefore, the jurisdiction of the ICC over the Syrian situation remains undoubtedly competent.
6.0 Conclusion
From the foregoing, the armed conflict in Syria a non-international armed conflict because the ‘primary’ parties to the armed conflict are the Syrian government under Bashar al-Assad, and a coalition of domestic non-governmental armed groups such as Free Syrian Army (FSA), the Islamic State and the Levant (ISIL), among others. The Syrian conflict started with the neglect of the Assad government to unify the Syrian people thereby occasioning political instability. This is coupled with the unemployment as caused by neoliberal economic reforms and revenue concentrated in the hands of a privileged few; the imperiousness and repression of dissenting voices and peaceful protesters. This led to eventual outbreak of armed conflict between the opposition and the government armed forces. Thus, the battleground is used to prosecute proxy wars between other gulf states as well as the ongoing global confrontation principally between Russia/China/Iran and the U.S.
As a result, many rules are broken in the course of the war. Thus, the rules such as prohibition of attacks on civilians, preclusion of starvation of civilians, inviolability of the cultural objects and places of worship, humane treatment of the prisoners of war, prohibition of the use of chemical/poisonous weapons, pillaging of town or place have been violated with impunity. The violations may continue unabated unless urgent strategic steps are taken to stem the ugly tides.
In view of the above, this paper suggests a number of measures to prevent continued violation of the rules of armed conflicts. This is mainly a respect for international law. The role of the UN is key in this circumstance. It is therefore suggested that a review of the veto system as currently being practised in the UN Security Council. A continued adherence of the present system will lead to grave abuses of human rights, thereby encouraging widespread commission of atrocities against the civilian population in hostile states. Therefore, the mandate of the UN Security Council to maintain international peace and security is crucial to achieving the lofty objectives of the United Nations.
[1] Abi-Saab Georges, Non-International Armed Conflicts 217-239 (1986), in International Dimensions of Humanitarian Law; Abi-Saab Georges, “Humanitarian Law and Internal Conflicts 209-223 (1991), in Humanitarian Law of Armed Conflict Challenges Ahead, Essays in Honour of Frits Kalshoven, Dordrecht; Bugnion François, Jus ad Bellum, Jus in Bello and Non-International Armed Conflicts, 6 Y.I.H.L. 167-198 (2003); CULLEN Anthony, Key Developments Affecting the Scope of Internal Armed Conflict in International Humanitarian Law, 183 Mil. L. Rev. 66-109 (2005).
[2] Cullen Anthony, The Concept of Non-International Armed Conflict in International Humanitarian Law 219 (2010); Junod S. Sylvie, Additional Protocol II: History and Scope, 33 (1) Am. Univ. L. Rev. 29-40 (1983); Kalshoven Frits, Applicability of Customary International Law in Non-International Armed Conflicts 267-285 (1975); Kwakwa Edward, The International Law of Armed Conflict: Personal and Material Fields of Application 208 (1992).
[3] ICRC, ‘Methods and Means of Warfare’, https://www.icrc.org/eng/war-and-law/conduct-hostilities/methods-means-warfare/overview-methods-and-means-of-warfare.htm (last visited 23/09/2018).
[4] MOIR Lindsay, The Law of Internal Armed Conflict 297 (2002), in 30 I.Y.H.R. 1-226, (2000); PERNA Laura, The Formation of the Treaty Law of Non-International Armed Conflicts 168 (2006); SCHMITT N. Michael Et Al (eds), The Manual of Law of Non-International Armed Conflict: with Commentary, 36 I.Y.H.R. 71 (2006); SIVAKUMARAN Sandesh,, Identifying an Armed Conflict not of an International Character 363-380, (2009).
[5] See, ‘Syria 2017/2018’ – a recent report by Amnesty International. Available at https://www.amnesty.org/en/countries/middle-east-and-north-africa/syria/report-syria/ (Last visited 23/09/2018), [hereinafter Amnesty International].
[6] Ibid.
[7] Al-Jazeera, The Syria war explained from the beginning, available at https://www.aljazeera.com/news/2016/05/syria-civilwar-explained-160505084119966.html (Last visited 23/09/2018)
[8] Ibid.
[9] See Ginkel, B.T., Prosecuting Foreign Terrorist Fighters: What Role for the Military?, (2016); Sinai J., A Framework for Assessing the Mobilization of Westerners by Jihadists in Syria and Intervention Points for Counter-Measures 45-52 (2016); Terry P., Germany Joins the Campaign against ISIS in Syria: A Case of Collective Self-Defence or Rather the Unlawful Use of Force, 1 Russ. L. J. 26-60 (2016).
[10] See Blurring the Borders: Syrian Spillover Risks for Turkey, 225 Eur. Rep.; Gratz, W., Das Management der Flüchtlingskrise: Never let a Good Crisis go to Waste (2016); Hermann, R., Endstation Islamischer Staat?: Staatsversagen und Religionskrieg in der arabischen Welt, München, Deutscher Taschenbuch Verlag (2015); Human Rights Watch, If the Dead could Speak: Mass Deaths and Torture in Syria’s Detention Facilities (2015); Mann, I., Humanity at Sea: Maritime Migration and the Foundations of International Law (2016); Biondi, Ch.-B., The Impact of the Syrian Crisis on Lebanon: Local and Regional Rationales for Hezbollah’s Involvement in Syria, Roma (2013); Ciro J. Martínez, & B. Eng, The Unintended Consequences of Emergency Food Aid: Neutrality, Sovereignty and Politics in the Syrian Civil War 2012-15, 1 Int’l Aff. 153-173 at 92 (2016); Cunliffe, E. Et Al, The Destruction of Cultural Property in the Syrian Conflict: Legal Implications and Obligations, 1 Int’l J. Cult. Prop. 1-31 at 23 (2016); Heisbourg, F., The Strategic Implications of the Syrian Refugee Crisis, 6 Surv. Glo. Pol. & Strat. 7-20 (2015); Yaha, M., The Socio-Economic Impact of the Syrian Civil War, SIPRI Yearbook 37-47 (2015).
[11] Goldsmith L.T., Cycle of Fear: Syria’s Alawites in War and Peace, London 2015; Krieg A., Externalizing the Burden of War: the Obama Doctrine and US Foreign Policy in the Middle East, 1 Int’l Aff. 37-47 at 92 (2016); Owen, J.M., Springs and their Offspring: the International Consequences of Domestic Uprisings,1 Eur. J. Int’l Sec. 49-72 (2016); Şeysane, V. & C. Çelik, R2P and Turkish Foreign Policy: Libya and Syria in Perspective, 3-4 Glo. Res. Pro. 376-397 (2015); Walt, S.M., ISIS as Revolutionary State: New Twist on an Old Story, 6 For. Aff. 42-51 (2015).
[12] Association for International Affairs (AIA), ‘Current Crisis in Syria: Background Report’, NATO model 12 (2012), [hereinafter Association for International Affairs.]
[13] Ibid. See also, H.J. Musarurwa & S.B. Kaye, Unpacking the Syrian Crisis: A Literature Review, 6 Inf. Manag. & Bus. Rev. 32-38.
[14] Lefèvre, Raphaël. Ashes of Hama : the Muslim Brotherhood in Syria. (2013).
[15] Ahmad, Balsam. Syria’s contrasting neighborhoods : gentrification and informal settlements juxtaposed (2012).
[16] Batatu, Hanna. Syria’s peasantry : the descendants of its lesser rural notables, and their politics (1999); Chaitani, Youssef. Post-colonial Syria and Lebanon : the decline of Arab nationalism and the triumph of the state (2007); Choueiri, Youssef M. (ed.) State and society in Syria and Lebanon (1994).
[17] AIA (supra). Dam, Nikolaos van. The struggle for power in Syria : sectarianism, regionalism and tribalism in politics, 1961-1980 (1981); Firo, Kais. Metamorphosis of the nation : the rise of Arabism and minorities in Syria and Lebanon, 1850-1940 (2009).
[18] L. Khatib, ‘A Comprehensive Strategy for Syria: Next Steps for the West 2 (2014).
[19] Ibid. See also George, Alan. Syria, neither bread nor freedom (2003); Ginat, Rami. Syria and the doctrine of Arab neutralism. Brighton (2005); Haddad Bassam. Business networks in Syria : the political economy of authoritarian resilience (2012).
[20] Friedman, Yaron. The Nusayri-Alawis : an introduction to the religion, history and identity of the leading minority in Syria (2010); Gelvin, James L. Divided loyalties : nationalism and mass politics in Syria at the close of Empire (1998).
[21] Hinnebusch, A. Raymond, The state and political economy of reform in Syria. (2009); Khatib, Line. Islamic revivalism in Syria: the rise and fall of Ba’thist secularism (2011).
[22] Khoury, S. Philip, Syria and the French mandate: the politics of Arab nationalism, 1920-1945. (1987); Lawson, Fred H. (ed.) Demystifying Syria, (2009).
[23] Lundgren Jörum, Emma. Beyond the border : Syrian policies towards territories lost (2011); Mardam Bey, Salma. Syria’s quest for independence. Reading, (1994); Perthes, Volker. Syria under Bashar al-Asad : modernisation and the limits of change, (2004).
[24] Pierret, Thomas. Religion and state in Syria : the Sunni ulama from coup to revolution (2013); Rabinovich, Itamar. The view from Damascus : state, political community and foreign relations in modern and contemporary Syria (2011); Rubin, Barry M. The truth about Syria (2007).
[25] Upon assumption of office and sequel to widespread protests for regime change, Bashar Al-Assad lifted the State of Emergency ban that lasted over three decades, released over 40 political prisoners in state detention, as well as introduced what has been widely dubbed as ‘neoliberal economic reforms’ designed to rejig the Syrian economy. He also conducted general elections which were boycotted by the opposition. See Ruiz de Elvira, Laura. Civil society and state in Syria : the outsourcing of social responsibility (2012).
[26] Seale, Patrick. Asad of Syria : the struggle for the Middle East (1989); Sottimano, Aurora. Changing regime discourse and reform in Syria (2009).
[27] Stacher, Joshua. Adaptable autocrats : regime power in Egypt and Syria. Stanford, CA : Stanford University Press, 2012; Ṭauber, Eliezer. The formation of modern Syria and Iraq (1995).
[28] Wedeen, Lisa. Ambiguities of domination : politics, rhetoric and symbols in contemporary Syria (1999).
[29] White B. Thomas. The emergence of minorities in the Middle East : politics and community in French mandate Syria (2011); Wieland Carsten, Syria at bay : secularism, Islamism and “Pax Americana” (2006).
[30] Ziadeh, Radwan. Power and policy in Syria : the intelligence services, foreign relations and democracy in the modern Middle East (2011).
[31] L. Aritmatsu & M. Choudhury, ‘The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya 7 (2014).
[32] J. Berzins, ‘Civil War in Syria: Origins, Dynamics, and Possible Solutions 1-3 (2013).
[33] Ibid.
[34] B.M. Jenkins, The Dynamics of Syria’s Civil War 3-5 (2014).
[35] Ibid.
[36] Ibid.
[37] Ibid.
[38] Lesch, David W. The new lion of Damascus : Bashar al-Asad and modern Syria (2005).
[39] Ziser, Eyal. Commanding Syria : Bashar al-Asad and the first years in power (2007).
[40] Ibid.
[41] ICTY, (Prosecutor v. Tadic), Appeals Chamber, Judgment. IT-94-1-A, 15 July 1999, at 84 and 115 etc, [hereinafter Tadic Case].
[42] See, Geneva Academy of International Humanitarian Law and Human Rights, The War Report: Armed Conflicts (2017), [hereinafter the War Report].
[43] Cullen anthony, The Definition of Non-International Armed Conflict in the Rome Statute of the International Criminal Court: an Analysis of the Threshold of Application Contained in Article 8(2)(f), 12 J. Conf. & Sec. L., 419-445 (2007); Fleck Dieter, Humanitarian Protection in Non-international Armed Conflicts: the New Research Project of the International Institute of Humanitarian Law, 30 I.Y.H.R. 1-16 (2000); Fouquet Catherine de (ed.), Guerres civiles, (1997).
[44] Küefner Stefanie, The Threshold of Non-International Armed Conflict the Tadic Formula and its First Criterion Intensity, 102-6 Militair-Rechtelijk Tijdschrift,301-3011 (2009); PIERNAS Carlos, The Protection of Foreign Workers and Volunteers in Situation of Internal Conflict, with Special Reference to the Taking of Hostages, 287 I.R.R.C. 143-172 (March-April 1992); SIOTIS Jean, Le Droit de la Guerre et les Conflits Armés d’un Caractère Non International, L.G.D.J. 284 (1958).
[45] Common Article 2 to the 1949 Geneva Conventions.
[46] H.P. Gasser, International Humanitarian Law: An Introduction, in H. Haug (ed), Humanity for All: The International Red Cross and Red Crescent Movement 510-11 (1993).
[47] ICRC, ‘International Humanitarian Law and the Challenges of the Red Cross and Red Crescent, (2011). See also, M. Zwanenburg et Al, Is the Law of Occupation Applicable to the Invasion Phase? 94 I.R.R.C. 885 (Spring 2012).
[48] ICRC, Commentary on Art 2 of the First Geneva Convention: Convention (i) for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, 234-237 (2016).
[49] The Geneva Academy, Supra note (42).
[50] ICTY, (Prosecutor v. Blaskic), Trial Chamber, Judgment, IT-95-14-T, 3 March 2000, at 149-50. See also, The Tadic Case, Supra note (41).
[51] Tadic case, Supra note (41).
[52] Bartels Rogier, Timelines, Borderlines and Conflicts: the Historical Evolution of the Legal Divide between International and Non-International Armed Conflicts, 91-873 I.R.R.C. 35-67 (March 2009); Crawford Emily, Unequal before the Law: The Case for the Elimination of the Distinction between International and Non-International Armed Conflicts, 20 Lei. J. Int’l L. 441-465 (2007); Crawford Emily, Blurring the Lines between International and Non-International Armed Conflicts: the Evolution of Customary International Law Applicable in Internal Armed Conflicts, 15 Aust. Int’l L. J. 29-54 (2008).
[53] The War Report, Supra note (41).
[54] Ibid.
[55] See Art 1(2), 1977 Additional Protocol II to the 1949 Geneva Conventions. See also, Art 8(2)(d), Rome Statute.
[56] Tadic case, Supra note (41).
[57] BBC, ‘The Syrian War’, available at https://www.bbc.com/news/world-middle-east-35806229 (last visted 24/09/2018)
[58] Art. 22, 1907 Hague Convention.
[59] Jørgensen, N.H.B., The Concept of State Crimes in the Context of the Syrian Crisis, 18 Palestine Y. Int’l L. 173-202 (2015); Lüif, Ch., Displaced by Conflict: International Humanitarian Law and its Protection Mechanisms, 29-1 Humanitäres Völkerrecht 15-22 (2016); O’Connor, L., Legality of the Use of Force in Syria against Islamic State and the Khorasan Group, 3-1 J. Use Force & Int’l L. 70-96 (2016); Power, S.R., Starvation by Siege: Applying the Law of Armed Conflict in Syria, 8-2 Amsterdam L. For. 1-22 (2016); Ramsden, M., British Air Strikes against ISIS in Syria: Legal Issues under the European Convention on Human Rights, 2 Eur. Hum. Rig. L. Rev. 395-431 (2016).
[60] Art.1(4), 1907 Hague Convention.
[61] Kleffner Jann K., From “Belligerents” to “Fighters” and Civilians Directly Participating in Hostilities: on the Principle of Distinction in Non-International Armed Conflicts One Hundred Years After the Second Hague Peace Conference, 54-2 Neth. Int’l L. Rev. 315-336 (2007); Kleffner Jann K., The Notions of Civilians and Fighters in Non-International Armed Conflicts 69-78 (2008); Solf Waldemar A., The Status of Combatants in Non-international Armed Conflicts Under Domestic Law and Transnational Practice, 33/1 Amer. Univ. L. Rev. 53-65 ( 1983).
[62] Balch-Lindsay Et Al, Third-Party Intervention and the Civil War Process, 45(3) J. Peace & Res. 345-363 (2008); Beath, Andrew Et Al, Winning Hearts and Minds through Development Aid: Evidence from a Field Experiment in Afghanistan, (2013); Berman, Eli, Et Al, Can Hearts and Minds Be Bought? The Economics of Counterinsurgency in Iraq, 4 J. Polit. Eco. 119 (2011); Biddle, Stephen, Et Al, Testing the Surge: Why Did Violence Decline in Iraq in 2007? 37(1) Int’l Sec. 7-40 (2012).
[63] Art. 40, San Reno Manual. See also, U.N.H.R., Indiscriminate Attacks and Indiscriminate Weapons in International Humanitarian Law 7(2016).
[64] Ibid.
[65] Amnesty International, Supra note (5). For the definition of war crimes and crimes against humanity, see Article 8(1)(2) (a-f) of the Rome Statute.
[66] De Guttry, A., Et Al (eds.), Foreign Fighters under International Law and Beyond, The Hague, Asser Press, (2016); Bannelier-Christakis, K., Military Interventons Against ISIL in Iraq, Syria and Libya, and the Legal Basis of Consent, 29-3 Leiden J. Int’l L. 743-775 (2016); Flasch, O., The Legality of the Air Strikes against ISIL in Syria: New Insights on the Extraterritorial Use of Force against Non-State Actors, 3-1 J. Use Force & Int’l L. 37-69 (2016).
[67] Art. 13(2) of the Protocol Additional to the Geneva Conventions. See also, Art. 23 of the 1907 Hague Convention.
[68] Ibid.
[69] Buhaug, Halvard, Et Al, Geography, Rebel Capability, and the Duration of Civil Conflict, 53 (4) J. Conf. Res. 544-569 (2009); Call Charles & Susan E. Cook, On Democratization and Peacebuilding, 9 Glob. Gov. 233–34 (2003); Cedarman, Lars-Erik, Et ll, Why do Ethnic Groups Rebel? New Data and Analysis, 62 World Polit. 87-119 (2010).
[70] M. Hartberg, et al, ‘Failing Syria: Assessing the Impact of UN Security Council Resolutions in Protecting and Assisting Civilians in Syria, 8 -9 (2015).
[71] Ibid.
[72] Art. 14, Additional Protocol to the Geneva Conventions.
[73] For this, See Power, S.R., Starvation by Siege: Applying the Law of Armed Conflict in Syria, 8-2 Amst. L. Forum. 1-22 (2016).
[74] Amnesty International, ‘Death Everywhere: War Crimes and Human Rights Abuses in Aleppo, Syria’; index: MDE 24/1370/2015, at 64, [hereinafter Death Everywhere].
[75] M. Hartberg, Supra note (70).
[76] Ibid.
[77] Art. 4, 1907 Hague Convention (Prisoners of War). See also, Art. 23(b)(c) and (e) of the 1907 Hague Convention.
[78] Amnesty International (supra)
[79] Art. 23, 1907 Hague Convention (Prohibition of Poisonous Weapons)
[80] Amnesty International, Supra note (5). See also, R. Pita & J. Domingo, ‘The Use of Chemical Weapons in the Syrian Conflict391-402 (2014).
[81] Ibid.
[82] Ibid.
[83] Art. 28, 1907 Hague Convention.
[84] Ibid. See also, Death Everywhere, Supra note (72).
[85] CRAWFORD Emily, The Treatment of Combatants and Insurgents under the Law of Armed Conflict 213 (2010); GOODMAN Ryan, The Detention of Civilians in Armed Conflicts, 103-1 A.J.I.L. 48-74 (2009); Ministry of Foreign Affairs of Denmark, The Copenhagen Process on the Handling of Detainees in International Military Operations, 3-4/46 Rev. Droit Militaire & Du Droit De La Guerre 363-392 (2007); RODLEY Nigel S., The Treatment of Prisoners under International Law 697 (2009); OSWALD Bruce, The Detention of Civilians in Military Operations: Reasons for and Challenges to Developing a Special Law of Detention, 32 Melb. Univ.L. Rev. 524-553 (2008).
[86] ICRC, Improving Compliance with International Humanitarian Law 4 (2004).
[87] H. Abass, Syria: The Current Situation and Possible Solutions, at 10-11.
[88] The proposition by Hassan Abass for active steps to be taken by the Arab League to solve the armed violence in Syria may be a welcome development. However, ensuing events suggest its inefficacy as cases of continued violations are still being recorded.
[89] Ajami Fouad. The Syrian rebellion (2012); Baron Xavier. Aux origines du drame syrien, 1918-2013, (2013); Belhadj Souhaïl. La Syrie de Bashar al-Asad : anatomie d’un regime autoritaire, (2013); Estival, Jean-Pierre. La tragedie syrienne : revolte populaire ou complot international, (2013); Filiu, Jean-Pierre. Le nouveau Moyen-Orient : les peuples a l’heure de la revolution syrienne, (2013).
[90] E. Svoboda & E.C. Gillard, Protection of Civilians in Armed Conflict: Bridging the Gap between Law and Reality, 64 Hum. Pol. Gr. Pol.Brief 2 (2015).
[91] Ibid. Starr Stephen. Revolt in Syria : eye-witness to the uprising (2012).
[92] Hashemi, Nader (ed.) The Syria Dilemma, (2013); Hokayem, Emile. Syria’s uprising and the fracturing of the Levant, Abingdon : Routledge for the International Institute for Strategic Studies, (2013).
[93] Association for International Affairs, Supra note (12), Balcells Laia. Rivalry and Revenge: The Politics of Violence in Civil War, Ph.D. dissertation, Department of Political Science (2010), Yale University, [hereinafter Balcells]; Balcells Laia. Continuation of Politics by Two Means: Direct and Indirect Violence in Civil Wars.” 55-3 J. Conf. Res. 397-422 (2011); Balcells, Laia, & Stathis N. Kalyvas. Technologies of Rebellion and Civil War Outcomes 273 (2012).
[94] Lesch, David W. Syria: the fall of the house of Assad, New Haven, Conn. : Yale University Press, (2013); Syria, the Assads’ twilight (video) New York : Icarus Films, 2011.
[95] Ahram Ariel, Proxy Warriors: The Rise and Fall of State-Sponsored Militias (2011); Aydin, Aysegul & Patrick M. Regan, Networks of third-party interveners and civil wars, 18 Eur. J. Int’l Rel. 573-597 (2012).
[96] See Supra note (93).
[97] M. Kaim, Crisis in Syria: Possibilities and Limits of Military Intervention 1-3 (2012).
[98] Ibid.
[99] ICRC, Improving Compliance with International Humanitarian Law 5 (2004). One of the arguments canvassed by the ICRC is that the rules of IHL applicable to non-international armed conflict encourages states to grant what it called ‘the broadest possible amnesty’ to actors who have taken part in an armed conflict as a strategic measure towards achieving national reconciliation.
[100] Wieland, Carsten, et al. The Syrian uprising : dynamics of an insurgency (2013); Yazbik, Samir. A woman in the crossfire : diaries of the Syrian revolution (2012).
[101] L. Khatib, A Comprehensive Strategy for Syria: Next Steps for the West 1 (2014).
[102] S. Adams, Failure to Protect: Syria and the United Nations Security Council, Centre for the Responsibility to Protect 12 (2015), [hereinafter S. Adams.]
[103] H. Comak & B.S. Seker, UN Security Council Resolution 2254 and Its Implementations in Syria 7 (2015), [hereinafter Comak & Seker.]
[104] Ibid. Christia Fotini, Alliance Formation in Civil Wars (2012); Collier, Paul, et al, Breaking the Conflict Trap: Civil War and Development Policy, (2003); Cunningham David E., Veto Players and Civil War Duration 50-4 Am. J. Pol. Sci. 875–92 (2006).
[105] Ibid. Cunningham, David E., Barriers to Peace in Civil War (2011); Cunningham, David E., Blocking resolution: How external states can prolong civil wars, 47-2 J. Peace Res. 115-127 (2010); Cunningham, David E. & Douglas Lemke, Combining Civil and Interstate Wars, 67-3 Int’l Org. 609-27 (2013).
[106] Ibid. Cedarman, Lars-Erik Et Al., Why do Ethnic Groups Rebel?: New Data and Analysis, 62 World Pol. 87-119 (2010); Cunningham, Kathleen Gallagher, Divide and Conquer or Divide and Concede: How Do States Respond to Internally Divided Separatists? 105-2 Am. Pol. Sc. Rev. 275–97 (2012), [hereinafter Cunningham, Divide and Comquer.]
[107] Ibid. Cunningham, Kathleen Gallagher, Actor Fragmentation and Civil War Bargaining: How Internal Divisions Generate Civil Conflict, 57(3) Am. J. Pol. Sc. 659-672 (2013); Cunningham, Kathleen GallagherEt Al., Shirts Today, Skins Tomorrow: The Effects of Fragmentation on Conflict Processes in Self-Determination Disputes, 56(1) J. Conf. Res. 67-93 (2012).
[108] Ibid. Cunningham, Divide and Comquer, Supra note (106); Cunningham, Kathleen Gallagher. Inside the Politics of Self-determination (2011).
[109] Ibid.
[110] Ibid.
[111] Ibid.
[112] See http://www.un.org/apps/news/story.asp?NewsID=45856#.We3nSEy-KRs (last visited 27/09/2018)
[113] See http://www..un.org/en/sc/1540/ (accessed 27/09/2018).
[114] M. Hartberg, Supra note (70) at 8-9. See also, Comak & Seker, Supra note (103), fn. 76.
[115] L. Hilal, The United Nations and a Peace Process Strategy for Syria, Norwegian Peacebuilding Resource Centre, Nov. NOREF Pol. Brief, 2 (2014).
[116] S. Adams, Supra note (102).
[117] Ibid.
[118] Ibid.
[119] Ibid.
[120] Human Rights Watch, Q&A 2 (September 2013). See also, Syria: Criminal Justice for Serious Crimes under Internal Law 3 (2013).
[121] Ibid.
[122] Ibid.
[123] Ibid..
[124] Art.9 (10) Rome Statute.