Syria’s Maturing Insurgency: ISW Report

About the author(s):

Katharine Fortin is an Associate Professor at Utrecht University where she teaches IHL and IHRL. Before joining Utrecht University, she worked at the ICTY, ICC and Norton Rose Fulbright. She is the author of The Accountability of Armed Groups under Human Rights Law (Oxford University Press, 2017) which won the 2018 Lieber Prize. She has written widely about the framework of law that applies to armed groups in non-international armed conflicts and is one of the editors of the Armed Groups and International Law blog.

In June 2012, the Institute for the Study of War published a comprehensive report into the structure and strength of Syria’s insursency. The report, Syria’s Maturing Insurgency, examines the increasing effectiveness of Syria’s armed opposition which it numbers at 40,000.

The report makes particularly interesting reading when analysing the fighting in Syria in relation to whether it meets the threshold of a non-international armed conflict. The signficance of the violence in Syria reaching this threshold is that it would trigger the application of international humanitarian law and enable violations by both government forces and the Assad-opposition able to be prosecuted as ‘war crimes’.

It has long been established by case law from the international criminal tribunals that three factors are important when analysing whether a particular situation of internal unrest has reached a level of ‘non-international armed conflict’: (i) the intensity of the violence (ii) the protractedness of the violence (in practice (i) and (ii) are mainly analysed together) and (iii) the organisation of the armed opposition group.

In relation to Syria, there has been a notable reluctance among public figures to designate the violence in Syria as a non-international armed conflict. Just this week when Navi Pillay urged the United Nations Security Council to refer the situation to the International Criminal Court, she said that the evidence pointed to the commission of ‘crimes against humanity’. Her designation of the violations as crimes against humanity rather than war crimes, seems to indicate a view on the part of the OHCHR that the conflict in Syria may not yet have reached the threshold of a non-international armed conflict.

When looking at three pronged threshold test that has been set out by case law of the international tribunals, it seems clear that the violence in Syria meets the level of ‘intensity’ and ‘protractedness’ required for a non-international armed conflict. Without rehearsing the case law from the ICTY fully here, there seems ample evidence that the violence in Syria demonstrates a pattern of violence over a significant duration that sets it apart from a situation of ‘isolated or sporadic acts of violence’. This is confirmed by the number of Syrian forces which have been mobilised against the insurgency, the choice of weapons employed, the attention given to the conflict by the United Nations Security Council, the high number of civilians which have been displaced, the high number of civilian casualties, the extensive destruction of houses and properties, the besieging and blockading of towns and the control of territory by the rebel forces. All these factors have been deemed by the ICTY as strong indicators that a situation of violence has reached the level of intensity required for a non-international armed conflict.

Where then is the sticking point? The sticking point is likely the third limb of the threshold test: the organisation requirement. This requires that in order for there to be an non-international armed conflict to which international armed conflict applies, there is a discernable enity which is able to bear obligations under international humanitarian law. In the Boskoski and Djordjevic cases, the ICTY trial chambers have noted five broad categories of indicators which will be taken into account when a group’s organisation is assessed: (i) factors signalling the presence of a command structure; (ii) factors indicating that an armed group can carry out operations in an organized manner; (iii) factors indicating a level of logistics; (iv) factors relevant to determining whether an armed group possessed a level of discipline and the ability to implement the basic obligations of Common Article 3; and (v) factors indicating that the armed groups is able to speak with one voice.

Until now, many of these factors have been lacking from the Syrian opposition. Ever since the beginning of the uprising, the rebel forces in Syria have been presented as a force struggling with significant internal dissent. This was starkly illustrated early this week when the Cairo-organised summit descended into chaos and demonstrated considerable fractures among the FSA’s highest leadership.

The ISW report is a helpful document when assessing how close the Syrian rebels might be to constituting an ‘organisation’ for the purpose of international humanitarian law. The report is particularly insightful on the simulaneous expansion and de-centralisation of the Syrian insurgency. For example, the report estimates that the approximately 40,000 active fighters in the Syrian opposition derive from the composite estimates of 300 different rebel units operating in Syria. Such internal fragmentation clearly poses significant challenges to the establishment of unity and discipline among fighters.

The report also identifies the development of provincial military councils within the FSA as holding the greatest potential for improving the Syrian insurgency’s potential to establish order and unity. According to the report, the potential of the regional ground-up structures stand in stark contrast to the external opposition groups like the Syrian National Council and even the FSA headquarters in Turkey. The report also contains a section on the challenge of maintaining discipline within the insurgent ranks.

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