Losing the forest for the trees: Syria, law, and the pragmatics of conflict recognition.

• Author: Blank, Laurie R.
• Position: I. Why the Law of Armed Conflict (LOAC

ABSTRACT

The situation in Syria has the potential to become a pivotal moment in the development of the law of armed conflict (LOAC). The ongoing brutality serves as a reminder of the importance of extending international humanitarian regulation into the realm of non-international armed hostilities; however, the very chaos those hostilities produce reveals critical fault lines in the current approach to determining the existence of an armed conflict. The international community's year-long reluctance to characterize the situation in Syria as an armed conflict highlights a clear disparity between the object and purpose of the LOAC and the increasingly formalistic interpretation of the law's triggering provisions. Focusing on Syria, this Article critiques the overly technical approach to the definition of non-international conflict currently in vogue--based on Prosecutor v. Tadic's framework of intensity and organization--and how this approach undermines the original objectives of Common Article 3 of the Geneva

Conventions. This overly legalistic focus on an elements test, rather than the totality of the circumstances, means that the world has witnessed a retrograde of international humanitarian efficacy: Syria appears to be a lawless conflict like those that inspired Common Article 3--the regime employs its full combat capability to shell entire cities, block humanitarian assistance, and target journalists and medical personnel directly. The LOAC is specifically designed to address exactly this type of conduct, and yet the discourse on Syria highlights the dangers of allowing over-legalization to override--and undermine--logic, resulting in a deleterious impact on human life.

TABLE OF CONTENTS

1. WHY THE LAW OF ARMED CONFLICT (LOAC) REGULATES NON-INTERNATIONAL ARMED CONFLICTS A. Containing Brutality B. What Role for the Government's Response? II. THE EVOLUTION OF NON-INTERNATIONAL ARMED CONFLICT RECOGNITION A. Tadic and Its Framework B. The Strict Elements Test Takes Hold C. Conflict Recognition in Syria III. TOTALITY OF THE CIRCUMSTANCES: TO BETTER SERVE THE LOAC'S OBJECT AND PURPOSE A. Analogy to U.S. Constitutional Criminal Jurisprudence B. Understanding Intensity and Organization as a Framework IV. CONCLUDING THOUGHTS In a war zone, some buildings are obvious targets--command centers, weapons depots, enemy hideouts--and some are not, like schools, hospitals, media centers. But in the battle for Syria, where rules of war do not apply and where civilians are facing a savage massacre, the house that served as a makeshift press center in the rebel district of Bab Amr is ground zero. Destroying that target would go a long way toward allowing the regime of Bashar Assad to flatten the entire enclave without the whole world watching.

   Vivienne Walt, Escape from Syria, TIME INT'L, Mar. 19, 2012.

   The world has watched for over a year as President Bashar al-Assad's armed forces have employed unrestrained and overwhelming combat power against the most recent uprising of the Arab Spring. (1) What began as tens of thousands of unarmed protesters marching in the face of bullets and artillery shells has turned into a seemingly unending struggle between the regime's opponents--protesters, dissident army units, and other fighters--and the military forces loyal to the regime. (2) The unavoidable conclusion to be drawn from reports emanating from Syria is that the government's tactic of choice has been to indiscriminately and relentlessly attack entire towns, villages, and cities in an attempt to terrorize opponents and thereby repress the uprising once and for all.

   Massive human suffering associated with heavy-handed government response to internal dissident threats is nothing new; indeed, the images coming from Syria are unfortunately reminiscent of many previous "internal" armed conflicts. From the Spanish Civil War to Sierra Leone to Rwanda to Sudan, internal wars have showcased the most heinous acts humans can commit. The brutality and human suffering associated with these conflicts spurred one of the most important evolutions in international law during the twentieth century: the extension of international humanitarian regulation into this realm of sovereign authority. Since the advent of the 1949 Geneva Conventions, the international community has steadily expanded and reinforced the application of the law of armed conflict (LOAC) to situations of internal armed violence to regulate state and opposition conduct for the clear and imperative purpose of mitigating the suffering inevitably associated with these situations, especially suffering inflicted on innocent civilians and opposition forces who have been rendered hors de combat. (3) Today, it is simply axiomatic that the LOAC regulates the conduct of hostilities and the protection of persons during all armed conflicts, whether inter- or intra-state.

   As important as this development has been for limiting the suffering associated with war, it is equally axiomatic that the LOAC does not apply unless a situation rises to the level of armed conflict. (4) Accordingly, the increasingly robust package of international humanitarian protections the law mandates is not triggered if the facts on the ground do not support an objective, fact-based determination of armed conflict. Furthermore, because of its treaty foundation and the relatively recent role of international criminal jurisprudence assessing when this law applies, the meaning of armed conflict has become increasingly legalistic. Indeed, this shift in emphasis from a practical and pragmatic factual assessment to a legalistic "test" is reflected in what many today apply as an "elements" test: unless certain proposed elements are independently satisfied, a situation cannot be designated an armed conflict, even when the totality of the facts and circumstances cry out for international humanitarian legal regulation. The unfortunate effect of this evolution from practical to legal is that the international community seems incapable of seeing the humanitarian forest for the trees.

   The current situation in Syria has the potential to become a pivotal moment in the development of the law of conflict recognition. The ongoing brutality reminds the world of the importance of extending international humanitarian regulation into the realm of non-international armed hostilities; however, the very chaos produced by those hostilities reveals critical fault lines in the current elements approach to determining the existence of an armed conflict. From almost the very inception of the government response to the Syrian opposition, most people, if asked to describe what was happening in Syria, would have used terms such as war, conflict, hostilities, or something comparable. Indeed, it is almost incomprehensible that those caught up in the chaos and violence--government soldiers, dissident fighters, innocent civilians, journalists, foreign observers--would seriously question the assertion that they were involved in a "war." And yet the international legal discourse evinced a clear reluctance to acknowledge the existence of armed conflict until the legalistic elements test was apparently objectively satisfied, in the summer of 2012, at least fifteen months after the violence erupted. (5) Prior to this point in time, the international community spoke of massive human rights violations, repression, even massacres--but not of war or armed conflict. (6) This reluctance highlights a clear disparity between the object and purpose of the LOAC and the increasingly legalized and formalistic interpretation of the law's triggering provisions in relation to non-international hostilities. This is especially discouraging in light of the motivation for adopting the armed conflict trigger: to mitigate the impact of technical legal formulas when determining the applicability of humanitarian protections. (7)

   Before 1949 and the drafting of the Geneva Conventions (the Conventions), international law contained no positive law applicable to internal conflicts, and as these conflicts were perceived as occurring within the zone of state sovereignty, minimal authority existed for the applicability of customary regulatory norms. (8) The inclusion of Common Article 3 in those Conventions, which imposed limited but critically important standards of conduct on participants in internal conflicts, was revolutionary. This unprecedented intrusion into state sovereignty was motivated by the recognition that the brutality associated with internal conflict necessitated the imposition of an international obligation to respect, at a bare minimum, fundamental humanitarian principles at the core of the laws and customs of war. (9) The need for respect for these principles--focused principally on protecting individuals who never took or are no longer taking an active role in hostilities (10)--was equally logical regardless of whether the conflict was internal or interstate in nature. (11) Accordingly, Common Article 3 reflected a simple premise: armed conflict, whether internal or international, triggers international legal regulation. (12) As the states that adopted the 1949 Conventions understood so well, any other approach would leave the protection of individuals detrimentally impacted by the brutality of internal armed violence to the whims of the state, a situation already considered untenable by 1949. (13)

   In 1949, the drafters of the Conventions sought to have the law apply as broadly as possible to conflicts occurring between states and nonstate entities in order to maximize its effectiveness and reach. (14) In 1994, the first case before the International Criminal Tribunal for the former Yugoslavia (ICTY) set forth a comprehensive definition of armed conflict, specifically defining non-international armed conflict as "protracted armed violence between governmental authorities and organized armed groups or between such groups within a State." (15) At the...