By Erin Cronin
2020 marked a decade since the outbreak of pro-democracy demonstrations that spread across the Middle East and North African Region (‘MENA Region’). Initially beginning in Tunisia after the self-immolation of Mohamed Bouazizi, the Arab Spring – as it was coined – rapidly spread across much of the Region, leading to widespread calls for democratic reform against the autocratic regimes that maintained control. Despite the movement focusing on socioeconomic, legislative and regime reform, the violent suppression of these calls ultimately led to instability in the region, resulting in various conflicts, and the failure of numerous States.
1. Background to the conflict
In March 2011, peaceful protests developed in the city of Deraa, demonstrating against the excessive use of force against a group of teenagers accused of graffitiing “your turn, doctor” on a school wall. This was a direct reference to Syrian President Bashar al-Assad, claiming he would be next to face the cries of his people. This coincided with the growing pro-democracy movement that was sweeping across the region and led to peaceful demonstrations in numerous major cities. However, the immediate and violent suppression of these protests and the unlawful treatment of citizens led to violent clashes as tensions in both Syria and the wider MENA Region reached breaking point.
These initially unorganised and peaceful demonstrations were targeted by an almost immediate brutal response from the Assad Government (the Regime), including “widespread arrests and indiscriminate killings” by government forces. As hostilities escalated, and groups countering the Assad forces became more organised, supplemented by defectors from State armed forces, the situation developed past unrest to taking on the character of a civil conflict, and within months the situation in Syria had developed into an “armed insurrection”. The summer of 2011 marked a turning point, where civil disturbances became organised to a level that would class the conflict as not only a civil conflict, but a Non-International Armed Conflict (‘NIAC’), where the recognised State government was challenged by various armed rebel groups.
With the conflict reaching its 10th anniversary in early 2021, it remains unresolved, and has seen the displacement of over 12 million individuals, casualties numbering over 500,000, and has become a theatre of war for various international parties and Non-State Actors (‘NSAs’). The conflict is of significant importance under international law, with innumerable breaches of both International Criminal Law (‘ICL’) and International Humanitarian Law (‘IHL’). Despite this, the situation remains unchanging.
2. An issue under ICL
ICL concerns the criminal responsibility of individuals and focuses on those crimes covered by the Rome Statute. ICL is largely presided over by the International Criminal Court (‘ICC’), a “court of last resort” developed by the international community to consider those crimes that are “of concern to the international community”. This is not a definitive standard, however is understood to include those crimes falling within the four categories of the ICC’s jurisdiction: Genocide, Crimes Against Humanity, War Crimes, and the Crime of Aggression. This may be further extrapolated to include those crimes said to threaten the “peace, security and well-being of the world”.
In considering the situation in Syria, there is general consensus that crimes that have occurred would likely fall under Article 7, Crimes Against Humanity, and possibly Article 8, War Crimes. Irrespective of the category they fall under, the emphasis remains on the fact that the crimes that have and continue to occur in Syria – including attacks on civilians, protected areas, and the use of chemical weapons – have reached the requisite gravity to warrant an investigation on an international level.
Crimes commissioned and committed – particularly by the Assad Regime – include arbitrary detention, forced disappearances, and numerous situations of civilian attacks. Incidents such as the torture and murder of thirteen-year old Hamza Ali al-Khateeb at the hands of Assad forces drew international condemnation, and concern was expressed by various states – including the UK, USA and France – as to the steps the Assad Regime were taking to suppress the movement. This example, however, is not isolated, and rather demonstrates the widespread and systematic torturing and arbitrary detention of civilians in Syria throughout the conflict, including those not taking an active role in hostilities.
The alleged use of chemical weapons attacks also drew international attention, particularly the 2013 Ghouta civilian attack. Although the Assad Regime denied their involvement – instead laying blame on various rebel groups – intelligence personnel worldwide quickly established blame on the oppressive government. The crimes committed or commissioned by the Assad Regime are of a standard the ICC was envisioned to deal with; they shock humanity’s conscience, yet there is a failure of the domestic system to address these breaches of international law. There continues, however, to be a lack of action or accountability for those in control.
The ICC’s reach is limited to the ratification of the Rome Statute by States accepting its jurisdiction. Syria, a State with years of autocratic governments, has failed to become a signatory to the Rome Statute, thus denying the ICC’s personal and territorial jurisdiction over these crimes. Further, international interests by Russia, the primary supporter of the Assad Regime, have also removed the safeguard of a United Nations Security Council (‘UNSC’) Resolution to refer the situation. Article 13(b) of the RomeStatute allows the UNSC to refer situations to the ICC, circumventing the requirement of a State to be a signatory thereto. However, with Russia holding both a UNSC veto power and a vital position in the Syrian conflict, they have removed this safeguard by vetoing “six resolutions on justice and peace” and in 2014 vetoed a referral to the ICC.
Russia has their own ambitions in the Syrian conflict and as the primary supporter of the Assad Regime, they are not only positioning themselves as a major global power but are protecting domestic and economic factors. These include upholding Syria as a major purchaser of Russian arms, and ensuring access to their naval base in the Syrian city of Tartus, Russia’s only direct access to the Mediterranean. These personal interests have resulted in an impasse; where the ICC remains unable to overcome the procedural requirements to establish jurisdiction and commence investigations, and the Assad Regime remains sheltered within the UNSC from international criminal prosecution.
These issues in ensuring accountability for international crimes are representative of the strict procedural requirements to open an investigation, which are often exploited by States in protection of their own interests.
3. IHL; an alternative pathway?
As an established conflict, IHL also applies to govern the conduct occurring during this time.
While IHL has developed to apply during armed conflicts, its application to the situation in Syria is complicated when considering the evolving and contemporary nature of the conflict. Since its outbreak, Syria has been host to not only civil disturbances (ultimately resulting in a civil conflict), but has reached NIAC standard, been a stage for international actors to combat the Global War on Terror (‘GWOT’), and has seen NSAs play a vital role in opposing the autocratic regime. This not only frustrates the issue of the applicability of IHL, but also challenges its adaptability to NSAs.
Despite significant levels of support and interference from international actors and third-party States, the conflict in Syria has (largely) retained its characterisation as a NIAC. The lack of a definitive, codified test for this standard has instead resulted in the development of legal precedent from various courts and tribunals. Despite international involvement, the majority of the conflict in Syria has failed to reach the standard for an international armed conflict, instead retaining its NIAC nature, and thus the associated issues of this characterisation. While there is a general acceptance that the isolated 2017 United States attacks against military targets controlled by Assad forces led to the internationalisation of this conflict, it has largely necessitated the application of IHL enlivened during its position as a NIAC. The concept of internationalisation, however, is an evolving and relatively new one within conflict studies, and is another demonstration of the difficulty of applying international law to a contemporary conflict such as this.
Concerns regarding this NIAC nature of IHL relate primarily to the extent of international laws that can be applied in the circumstances. The traditional nature of treaty law governing state relations raises concerns in situations of NIACs, where the non-international nature fails to cover all parties and to uphold these standards. IHL requires, then, a focus on the consideration of those rules that have reached customary international law (‘CIL’) status; being so universal that they become binding. In 2005, the International Committee of the Red Cross (‘ICRC’) conducted a study to determine those principles that had reached customary status. Of these, the ICRC determined that approximately 85% of these rules were applicable to NIACs as well as traditional armed conflicts, providing a minimum standard of protection.
A similar view can be taken on the applicability of IHL to NSAs. In the Syrian conflict, NSAs – predominantly ‘rebel’ groups opposing the Assad Regime – have retained a vital position throughout the entirety of the conflict. While they have been core parties to the conflict, their non-State nature further complicates the applicability of IHL. There is a strong academic argument pertaining to the application of customary IHL standards to NSAs as well as state parties, due to the intention of CIL to bind “all members of the international community”. Similar to the laws relating to the NIAC of the conflict, this results in only a minimum standard of legal obligations and protections to be offered.
Despite IHL’s aims to govern conduct during conflicts, it has failed to adapt to the changing, contemporary nature of armed conflicts, where NSAs and conflicts of a non-international standard are growing in prevalence.
The situation that continues to occur in Syria is one that has seen not only high levels of international involvement, but has impacted the international community as a whole. The violent suppression of peaceful demonstrations, combined with years of oppression and the destabilising of the MENA Region, led to the development of an NIAC which has been further exacerbated by international involvement.
Despite the clear breaches of international law that continue to occur, the ongoing conflict in Syria has highlighted major flaws within the ICL and IHL frameworks. ICL has been unsuccessful in addressing the issue due to procedural requirements for jurisdiction, and the further complication of the UNSC veto-blocking.
IHL, comparatively, has reflected issues within international law of the failure to adequately adapt to the contemporary nature of armed conflicts. The situation in Syria is demonstrative of the changing nature of conflict, highlighting the vital roles of NSAs and the unequal applicability of IHL to NIACs. While this area of law has been more successful due to the applicability of CIL, this does not negate the lack of adaption to reflect contemporary issues.
Overall, the situation in Syria is no longer a civil nor regional one, it is an international one. As the conflict nears its 10th Anniversary it has highlighted the ongoing flaws in international law, and the need to adapt to overcome procedural and modern issues. These need to be addressed to obtain protection for those individuals in need, and to hold those responsible accountable for their actions.
 Louise Fawcett, International Relations of the Middle East (Oxford University Press, 5th ed, 2019) 358.  Fawcett (n 1) 150.  See Ibid.  See Ibid.  ‘Syria: Events of 2018’, Human Rights Watch (Web Page) < https://www.hrw.org/world-report/2019/country-chapters/syria> (‘Human Rights Watch’).  Rome Statute of the International Criminal Court, opened for signature 17 July 1998, 2187 UNTS 38544 (entered into force 1 July 2002) (‘Rome Statute’).  Matt Killingsworth, ‘Justice, Syria and the International Criminal Court’, Australian Institute of International Affairs (Web Page) <https://www.internationalaffairs.org.au/australianoutlook/justice-syria-international-criminal-Court/>.  Rome Statute (n 6) Preamble.  See Ibid. Rome Statute (n 6) art 7. Rome Statute (n 6) art 8.  Hugh Macleod and Annasofie Flamand, ‘Tortured and Killed: Hamza al-Khateeb, age 13’, Al Jazeera English (Feature, 31 May 2011) <https://www.aljazeera.com/indepth/features/2011/05/201153185927813389.html>.  ‘Clinton, citing Syrian boy, sees ‘total collapse’, Reuters (Report, 1 June 2011) https://www.dawn.com/news/633325/clinton-citing-syrian-boy-sees-total-collapse.  Human Rights Watch (n 5).  Rome Statute (n 6) art 7.  UK Joint Intelligence Organisation, Syria: Reported Chemical Weapons Use (Report No Jp 115, 2013).  Rome Statute (n 6) Preamble  Rome Statute (n 6) art 125.  Kozhanov, Nikolay, ‘Russian Policy Across the Middle East’ (Research Paper Russia and the Eurasia Programme, February 2018) 25. Rome Statute (n 6) art 13(b).  Kozhanov (n 19).  Dmitri Trenin, What is Russia up to in the Middle East? (Cambridge: Polity, 2018) 32.  Geneva Conventions (1949), Common Art 3. See also, Prosecutor v Tadić (Decision on Jurisdiction) (International Criminal Tribunal for the Former Yugoslavia (ICTY) Appeals Chamber, Case No IT-94-1 2 October 1996) .  David Wallace et al, ‘Trying to make sense of the senseless: Classifying the Syrian war under the Law of Armed Conflict’ (2017) 25(3) Michigan State International Law Review 572.  Stephanie Nebehay, ‘Exclusive: Situation in Syria constitutes an international armed conflict’, Reuters (Web Page, 8 April 2017) < https://www.reuters.com/article/us-mideast-crisis-syria-redcross-idUSKBN17924T>.  Josef Kraus, ‘The Internationalisation of Conflicts’ (2017) 26(5) Vojenské rozhledy 24.  Emily Crawford, ‘Unequal before the law: The Case for the Elimination of the Distinction between International and Non-international Armed Conflicts’ (2007) 20(2) Leiden Journal of International Law 457.  Jean-Marie Henckaerts and Louise Doswald-Beck, Customary International Law (Vol. 1: Rules, Vol. 2: Practice) (2005).  Crawford (n 27).  See Ibid.