How international law helps Assad and Putin

From colonial France’s bombing of Syria in the 1920s to Assad’s massacres today, international law has always been stacked against non-state actors, protecting even the bloodiest regimes and denying their victims justice.

Resistance to the occupation was constant, and from 1925 to 1927 it flared into a large-scale uprising. The Druze rose under the anti-sectarian slogan ‘Religion is for God and the Homeland For All’, while the peasants of the Ghouta, aflame with the nationalism of nearby Damascus, also acted. The French bombarded the Ghouta’s villages - today these are the towns ravaged by Assad’s bombardment – and brought in colonial troops from Morocco and Senegal to put down the rebellion. A residential quarter of Old Damascus was burned to the ground by French bombing. Rebuilt, the area is now called Hareeqa or ‘Fire’. This is where the first Damascene mass protest of 2011 would occur.1

About one hundred years ago, Damascus was bombed. It was bombed by what had constituted since 1923 its ‘rightful’ authorities, the French Mandate administration.2 The use of armed force came in response to a popular uprising and claimed over 500 lives. France described the situation as one of banditry, and reacted accordingly with what it considered policing measures. The local population, for its part, regarded the situation as one of warfare meriting a reaction from the League of Nations. They thought the laws of war would apply, and that the bombardment was unlawful since it targeted an allegedly undefended town. There is indeed no obvious reason why the laws of war shouldn’t have applied to Syria if it was considered part of the international legal system; neither its purportedly retrograde culture nor its tutelage. Only if relations between Syria and France were of a domestic nature would France have had full authority to suppress internal disorder, such as mob violence, brigandage, and banditry. Even supposing the native violence in Damascus was categorized in such a way, the French response was clearly excessive and could have potentially triggered a humanitarian intervention. In reality, however, the unrest had the character of an insurgency. Insurgents have a right to benefit from the laws of war in their relations with the de jure government, provided they meet certain requirements deemed representative of their recognition and acceptance of the purportedly universal principles of humanity, equity, and loyalty.3

Since 2011, Damascus, and Syria more broadly, is being bombed again, repeatedly and with virtually full impunity. It is bombed by its ‘legitimate’ government, the Assad regime, in response to a popular uprising. The hostilities have now claimed over 500,000 lives, more than 90% of these attributable to the Syrian regime and its allies, according to reliable data4. The regime has labeled the insurgency a foreign conspiracy and has consistently dealt with political opponents, armed or otherwise, as terrorists. Accordingly, it has reacted with what it considers policing measures, thereby reenacting the founding dichotomy of international humanitarian law (IHL) that deprives ‘unlawful’ combatants of international protection. From "savages" to "terrorists," the rationale for exclusion remains identical: tightening the ruling power’s sovereignty through the promotion of a certain type of violence, hence discrediting national liberation movements altogether.5

Yesterday’s “savages” are today’s “unlawful combatants.” Today, this rhetoric takes effect on two levels; the state’s response to insurgency, and international grounds for intervention, both overwhelmingly relevant to the Syrian case.

 

The Syrian conflict’s classification under International Humanitarian Law

In 2012, Syria was legally classified a non-international armed conflict (NIAC), as provided for in Common Article 3 of the Geneva Conventions and their Additional Protocol II, triggering the application of IHL.6 In order to be classified a NIAC, the Syrian case had to meet two key requirements established in the Tadìc case; the intensity threshold and the involvement of organized armed groups.7 Based on the type of weaponry used and its recurrence, as well as the heavy deployment of government forces, one could have considered the intensity threshold crossed as early as spring 2011. But the level of state violence by itself is completely irrelevant to the activation of IHL. The opposing entity must also satisfy the organizational element. Without the existence of an identifiable organized armed group, the laws related to NIAC are void. To qualify under IHL, the armed group must display a hierarchy; have a fixed emblem recognizable at a distance; carry arms openly; and conduct its operations with due respect to the laws and customs of war.8 How well does that apply to Syria ?

The Syrian opposition factions are fragmented and don’t answer to a single centralized command. In that sense, the Free Syrian Army (FSA) and its decentralized structure would not satisfy the overly formalistic organizational element. Indeed, for that reason, the Commission of Inquiry (CoI) failed to apply IHL in its first two reports from August 2011 and February 2012.9 At that time, the opposition movement was facing severe violence at the hands of the government but didn’t qualify as an organized armed group.

In fact, militarization only occurred later as the conflict evolved, as a natural response to regime brutality. It arose from the sensible realization that civil resistance would not be sufficient to bring about sustainable change. The regime would only go if forced.  Local brigades were formed in each neighborhood as a spontaneous response to state violence. Hence, militarization was not one formal hierarchical decision but rather a multitude of separate individual decisions to pick up arms. The FSA was formed as an umbrella organization that was nothing but a “collection of militias, some mobile, most local and defensive—all signed up to the twin aims of destroying the regime and establishing a democratic state.”10 These were the opposition factions to be assessed under IHL, local independent brigades working on two fronts: defending their city locally, and toppling the regime nationally.

These factions soon grew to constitute a significant and lasting fighting force able to challenge governmental control. In August 2012, the CoI recognized the existence of an armed conflict based on the intensity and duration and the “increased organisational capabilities of the anti-Government armed groups.” This assessment leaves the question of the necessity of coordination between the different brigades unanswered.

 

International Humanitarian Law’s constitutive ambiguities

Although one can never properly be excluded from the laws of war, IHL arguably possesses a constitutive "other;" the colonial other, or the "savage;" that seems to resurface in its modern application as the unlawful combatant. The first attempt at codifying the laws and customs of war was done through the drafting and adoption of the Hague Conventions in 1899, at a time Europe was trying to regulate its own irregular armed factions.11 Interestingly, this period coincides with the end of the ‘Scramble for Africa’ and Europe’s unprecedented wave of violence outside its vested borders. Although colonial wars didn’t trigger the effort to codify the laws of war, the question of the positioning of non-European peoples in relation to the laws of war was one that was vigorously discussed throughout the second half of the nineteenth century. By the time the European land-grabbing process was over, the prevailing narrative over the European presence had become that of law maintenance rather than armed conflict. ‘Pacification’ became the standard rationale to carry out massacres with complete impunity, a narrative that strangely recalls the Syrian state’s discourse regarding popular unrest. It reveals the insidious persistence of the constitutive ambiguities of the laws of war and their profoundly exclusionary strands.

There are different reasons why the laws of war were not applied to non-Europeans at the time, the most obvious being the absence of treaty ratification. At the time, the emerging ‘international community’ was adopting a positivist legal framework erecting statehood as the sole source of law. Legal instruments only applied to the extent stakeholders were states and parties to the relevant instruments. Only involvement was never an option. Non-participation was purely a consequence of a lack of international recognition as a sovereign actor. One could also argue that, had the Europeans respected the laws of war in their colonial encounters, they might actually have been put at a disadvantage.

Reciprocity is no longer an imperative for the laws of war to apply. The abandonment of reciprocity and the idea that states should be bound regardless of the other party’s conduct constitutes one of the biggest achievements of the so-called dewesternalization of the laws of war. States reclaimed rights their populations were deprived of when they were merely the savage inhabitants of a terra nullius.

In one sense, the involvement of Third World countries in existing legal norms didn’t make laws of war more inclusive. Instead, it legitimized and reinforced the public/private divide on which state sovereignty thrives. By consolidating the state monopoly over the use of armed force, it cemented the dominant discourse regarding the state’s intrinsic and indisputable legitimacy, and worked to “entrust the conduct of warfare to a class of combatants charged with enforcing restraint”.12 By defining and restricting access to protection, IHL replicated its founding bias. To be unconditionally protected under IHL means serving in a state’s armed force. In other words, it means showing the intent to wage war along originally Western lines. Protection of irregular troops as defined by the established authorities was and remains the exception.

 

Distinguishability and combatant status

At the heart of law’s propensity to exclude lays the original idea of "uncivilized" populations being incapable of applying and respecting the laws of war. Following the 1925 bombardment of Damascus, Captain Colby, a US army lawyer, wrote an article titled ‘How to fight savage tribes,’ in which he outlined grounds for not applying the laws of war to "savages."13 His central argument revolved around a fundamental difference in means of warfare; more specifically, a different conception of combatants. “Among savages, war includes everyone”, he said. That made him one of the early critics of so-called ‘unlawful warfare’ that today prejudices struggles for freedom and wars of national liberation.

The combatant qualifications were initially put forward and enumerated in Tadìc in order to differentiate an internal armed conflict from an un-organized short-lived insurgency; that is, to define the transition from domestic to international concern. These requirements are built around an elaborate euro-centric normative structure of the expected characteristics of a textbook combatant, and, under the language of positivist universalism, work to determine who are the legitimate participants in warfare. They are designed to fit large semi-professionalized armies and hence naturally tend to exclude groups that don’t comply with the customary conception of state warfare. They constitute the precise elements believed to be absent in savage troops. From the nineteenth-century question of how to treat "savages" in war, the question became how to determine "who is a combatant."

That determination first falls under the state’s discretion, which will most likely initially classify any insurrection as ‘internal disturbance and riots,’ as the Syrian regime did. It is indeed common practice for states to deny the existence of a NIAC on their territory, for as long as insurgents are considered unlawful combatants their protection falls under the state’s domestic jurisdiction. In the Syrian case, the regime’s response to the initially non-violent protests was unfailingly brutal and left protesters faced with extreme policing measures. The assessment of the existence of a NIAC is considered to be of an objective nature; as such, once the assessment has been made, the state is expected to abide by the applicable body of law. Acknowledgment of combatant status effectively enables the insurgency to invoke IHL and theoretically places them outside the legal and material control of the legitimate authority.

That doesn’t necessarily translate into effective gains in practice. Mégret argues the laws of war are achieved at the price of promoting a particular and exclusionary mode of warfare under which state actors are necessarily favored. It might as well be that opposition movements actually benefit from exerting types of warfare that allow them to blend into the population. Or, as was the case in Syria, that the distinction between combatant and civilian is inherently hazy. For insurrections, distinguishability is an obstacle in disguise. It implies the obligation for the weaker warring party to be singled out and risk being targeted.

 

Foreign intervention

The founding imbalance of power is also very present at the state level in the legality and implications of external interventions. The classification of a conflict as internal or international is largely dependent on the nature of the actors involved. There are three legal grounds for possible foreign intervention in the Syrian conflict: invitation by the legitimate authority; self-defense; or authorized actions by the Security Council. Intervention by invitation serves as the legal basis under which Russia is currently conducting its operations on Syrian territory. However, intervention by invitation is not considered internationalization, as it doesn’t imply state actors waging wars against one another as provided for under article 2(4) of the UN Charter. Two criteria come into play for the intervention to be legal under international law; valid consent and the legitimacy of the inviting authority.

In the Syrian case, the central concern revolves around the identification of the legitimate authority entitled to issue said invitation. A sensible answer might presume it to be the established authority’s prerogative, as was established in the Nicaragua judgement.14 This conclusion, though, could seem to conflict with the earlier recognition in 2012 by several states of the Syrian National Coalition as the “legitimate representative of the people.” Such recognition, however, does not amount to state recognition; an invitation to intervene can only be issued by the state authority, the Assad regime, and no amount of foreign intervention alongside regime forces will amount to internationalization. By the same logic, Russia’s continued weapons supply to the regime forces doesn’t violate international law, whereas any operational support provided to the FSA would however constitute a violation of the principle of non-intervention and the prohibition on the use of force. A familiar rhetoric, tone, and structure, inherently disadvantaging non-state actors.

The latest Western strikes in Damascus in April 2018 raised questions regarding the legality of the repeated foreign interventions on Syrian territory, and challenged the adequacy of international response in the face of the scale of crimes committed in Syria. The 2018 strikes, much like the April 2017 ones, were very limited in scope and were almost unquestionably illegal. They were not authorized by the UN Security Council (UNSC), nor did they constitute an act of self-defense. They are therefore prohibited under Article 2(4) of the UN Charter. They were meant as a response to the Assad regime’s use of internationally prohibited chemical weapons violating UNSC Resolution 2118. Although there are no international enforcement mechanisms to ensure states observe their international obligations domestically, there is also no legal basis permitting unilateral treaty provisions enforcement by military means.15 International law doesn’t provide a framework to respond to exceptional humanitarian necessities, and there is a real debate on whether it should.

Mechanisms like Responsibility to Protect ("R2P") and the UNSC supposedly have the mandate to address exceptional circumstances.16 Their inability to effectively do so is however increasingly apparent in the recurring crisis situations they prove unable to address, as in Syria, where a state has been waging a war on 'its' people with impunity for over seven years. This inability might very well be rooted in the constitutive bias of the laws of war and the establishment of statehood as the cornerstone of international law.

 

Conclusion

At first glance, it might seem like the current situation in Syria is unparalleled, and indeed, in terms of human casualties, it is. In this essay I have, however, sought to demonstrate the similarities in the wrongs faced by the local population in 1925 and 2011 at the hands of the established ‘legitimate’ authorities. From "savages" to "terrorists," insurgents were and remain the first victims of international humanitarian law’s constitutive propensity to exclude its other. Because states act as the primary enforcer of international law, domestic protection is at the mercy of their goodwill. It begs the question of the roots of a state’s legitimacy, its acquisition, and its loss, a mechanism not necessarily self-evident with non-democratic states such as Syria. International law’s founding ambiguities can be found to reverberate into the current international context, eroding our ability to address the emerging challenges produced by the encounter of post-colonial sovereignty and warfare.

  • 1. L. Al-Shami, R. Yassin-Kassab, ‘Burning Country: Syrians in Revolution and War’, Pluto Press, 2016, p. 6.
  • 2. Q. Wright, ‘The Bombardment of Damascus’, 20 American Journal of International Law (1926).
  • 3. A. Rolin, ‘Le Droit Moderne de la guerre’, Vol. 1, 143 (1920).
  • 4. .See M. Specia, ‘How Syria’s death toll is lost in the fog of war’, the New York Times, available at ; The Syria Campaign, ‘Who’s killing civilians in Syria’, available at last accessed 15.04.18
  • 5. F. Mégret, ‘’From ‘savages’ to ‘unlawful combatants’: a postcolonial look at international law’s ‘other’’, in A. Orford (ed), ‘INTERNATIONAL LAW AND ITS 'OTHERS', Cambridge University Press, 2006
  • 6. L. Arimatsu, M. Choudhury, ‘The Legal Classification of the Armed Conflicts in Syria, Yemen and Libya’, Chatham House, International Law PP 2014/01 (2014), referring to: Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field, Aug. 12, 1949, 6 UST 3114, 75 UNTS 31; Geneva Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, Aug. 12, 1949, 6 UST 3217, 75 UNTS 85; Geneva Convention relative to the Treatment of Prisoners of War, Aug. 12, 1949, 6 UST 3316, 75 UNTS 135; Geneva Convention relative to the Protection of Civilian Persons in Time of War, Aug. 12, 1949, 6 UST 3516, 75 UNTS 287; Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), June 8, 1977, 1125 UNTS. 609. Syria is not a state party to Additional Protocol II.
  • 7. Prosecutor v. Tadić, ICTY, Decision on the Defence Motion for Interlocutory Appeal, 2 October 1995, IT-94-1, para 70.
  • 8. Ibid Geneva Convention III art. 4A(2).
  • 9. Ibid; United Nations General Assembly, Report of the independent international commission of inquiry on the Syrian Arab Republic, A/HRC/19/69.
  • 10. Ibid (n1) 85.
  • 11. Convention regarding the Pacific Settlement of International Disputes, The Hague, 29 July 1899, in force 4 September 1900, 32 Stat. 1779; 1 Bevans 230; Convention with Respect to the Laws and Customs of War on Land, The Hague, 29 July 1899, in force 4 September 1900, 32 Stat. 1803; 1 Bevans 247 (‘Hague Convention II’); Convention for the Adaptation to Marine Warfare of the Principles of the Geneva Convention of 22 August 1864, The Hague, 29 July 1899, in force 4 September 1900, 32 Stat. 1827, 1 Bevans 263; Declaration to Prohibit for the Term of Five Years the Launching of Projectiles and Explosives from Balloons, and Other Methods of a Similar Nature, The Hague, 29 July 1899, in force 4 September 1900, 32 Stat. 1839; 1 Bevans 270; Declaration concerning Asphyxiating Gases, The Hague, 29 July 1899; Declaration concerning Expanding Bullets, The Hague, 29 July 1899 (for text of Declarations, see James Brown Scott (ed.), The Hague Conventions and Declarations of 1899 and 1907 (New York, 1915). Ibid (n14).
  • 12. Ibid (n14).
  • 13. 21 American Journal of International Law (1927) 279.
  • 14. Nicaragua v United States of America [1986] ICJ 1
  • 15. B. Saul, 'US Missile Strikes Expose the Untenable Status Quo in International Law’, Chatham House, 26.04.17, available at < https://www.chathamhouse.org/expert/comment/us-missile-strikes-expose-un... last accessed 17.04.18.
  • 16. Responsibility to Protect Report, Report of the International Commission on Intervention and State Sovereignty, December 2001.