The organisational requirement for the threshold of non-international armed conflict applied to the Syrian opposition

About the author(s):

Rogier Bartels

Rogier is a researcher at the Netherlands Defence Academy (NLDA) and works at the Dutch National Prosecutor’s Office. He holds LL.M-degrees from Utrecht University and the University of Nottingham. Before taking up his current positions, he was an associate legal officer in Chambers at the International Criminal Tribunal for the Former Yugoslavia, and a legal adviser at the International Humanitarian Law Division of the Netherlands Red Cross.

Rogier is an adjunct-lecturer at the Hague University of Applied Sciences, where he teaches international humanitarian law, and he co-convenes the Hague Initiative for Law and Armed Conflict.

In my first contribution to this blog, I will follow up on Katharine’s post below on religion as a source of rules in the Syrian conflict. She discussed an interesting news article in the Guardian that tells how many young fighters in Syria have been motivated to join brigades associated with Al-Qaida due to the disorganisation and lack of order and rules within the Free Syrian Army (FSA). A young fighter is quoted as having said: “The Free Syrian Army has no rules and no military or religious order. Everything happens chaotically.”

This is interesting in light of the recent recognition of the situation in Syria as a non-international armed conflict by the ICRC (as also discussed by Katharine at the time) since one of the indicative criteria for the existence of such an armed conflict is the level of organisation of the parties (in the present case, the opposition/rebel forces). A few days prior to the ICRC publicly calling the situation in Syria an armed conflict, a report drafted for the US Congress already mentioned that “Syria is now mired in an armed conflict between forces loyal to President Bashar al Assad and rebel fighters opposed to his rule.” However, this report stated about the organisation of the FSA that:

Over time the military efficacy of Syrian rebel fighters nominally affiliated with the Free Syrian Army (FSA) appears to be increasing due to both external assistance and their own capabilities. However, opposition militias still lack national coordination, and this limits their ability to move beyond local operations.

In June, Katharine posted about the report Syria’s Maturing Insurgency, which highlighted that – at the time – the problem in recognising the situation in Syria as an armed conflict was the organisation of the Syrian armed opposition. In this post, I will delve a little deeper into this matter and give an overview of the organisational criterion as set by the case law of the International Criminal Tribunal for the former Yugoslavia (ICTY) and discuss the relevance of the apparent lack of rules and order within the FSA.

 As Syria has not ratified Additional Protocol II of 1977, the non-international armed conflict in Syria can only be a so-called “Common Article 3 conflict”. Common Article 3 of the 1949 Geneva Conventions lays down minimum humanitarian standards that apply in the case of “armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”, but does not otherwise define what is to be understood by this term. According to Erik Castrén, who was present at the Diplomatic Conference in 1949, the omission of a definition in Common Article 3 was deliberate, because it was believed that such a definition could lead to a restrictive interpretation (Castrén, p. 85). Notwithstanding Carstrén’s remark, the Final Record of the Diplomatic Conference shows that the level of conflict for Common Article 3 to become applicable was meant to be similar to the level that was traditionally set for recognition of belligerency of a rebel force; and thus very high (see Bartels, pp 61-64). However, lately the threshold for application of international humanitarian law (IHL) through this article – as evidenced by e.g. the US Supreme Court in Hamdan – has been set at a level that is significantly lower than that for a classic civil war that would arise out of a situation of belligerency (which is preceded by phases of ‘insurgency’ and ‘rebellion’). States have always been reluctant to recognise the existence of an armed conflict within its state borders, but recognising the existence of an armed conflict elsewhere (e.g. in Yemen or the tribal regions of Pakistan) allows for war-rhetoric and under IHL states can use lethal force against ‘fighters’ and/or those directly participating in hostilities.

As said, Common Article 3 does not provide any guidance as to the threshold of non-international armed conflicts, but the ICRC Commentary to the Geneva Conventions lists “convenient criteria” to guide the application of Common Article 3 in practice (Commentary to GC I, pp 49-50). However, these have the potential to mislead, given that the said criteria were merely a compilation of the suggestions made by the delegates at the Diplomatic Conference – suggestions which in the end were all rejected (Cf Sivakumaran, p. 526). In one of its cases concerning Kosovo, the ICTY rejected the convenient criteria as being too stringent with regards to the organisational requirement, when it considered whether or not the Kosovo Liberation Army fulfilled the said requirement.

It was this same Tribunal that came up with what today is seen as the definition for ‘armed conflict’:

 … 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. (Tadic, para. 70)

 When applying the part of that definition relating to non-international armed conflicts in its first cases, the Tadi? Trial Chamber at the ICTY, and the ICTR’s Akayesu Trial Chamber, both interpreted the definition as consisting of two criteria, namely the protracted-ness of the conflict and the organisation of the parties to the armed conflict. In that way, a situation of armed conflict could be distinguished from “banditry, unorganized and short-lived insurrections, or terrorist activities” (Tadic, para. 562; Akayesu, para. 620).

This approach has subsequently been followed by other chambers at both these ad hoc Tribunals. The Tribunal in these later judgements concluded that “protracted” refers more to the “intensity” than to the duration (see e.g. Celebici, para. 184), which approach is in line with the Inter-American Commission on Human Right’s view in the La Tablada case, in which it considered that a 30 hour battle constituted a Common Article 3 conflict.

In Limaj, the ICTY found that the convenient criteria mentioned in the ICRC Commentary to the Geneva Conventions were not intended by the drafters to be explicit requirements, and therefore proceeded to assess the existence of a non-international armed conflict by reference to “objective indicative factors” of intensity of the fighting and the organisation of the armed group(s), depending on the facts and circumstances of each case. A couple of years later, the Haradinaj Trial Chamber conducted an elaborate review of the case law of the ad hoc Tribunals on this matter and listed all the ‘indicative factors’ that the various chambers had used to establish the existence of a non-international armed conflict. In Boškoski, the Trial Chamber gave a similarly detailed overview, but this not only assessed what was stated by the ad hoc tribunals, but looked further and included case law of other institutions as well as a review of the academic literature. On appeal, this approach was approved of by the Appeals Chamber.

 Boškoski discusses what constitutes the lower threshold of non-international armed conflicts and reviews how the relevant elements of Common Article 3 recognised in Tadi?, namely “organisation of the armed group” and “intensity”, are to be understood. In doing so, it identified the “factors” to be taken into account when assessing these elements and identified a number of “indicators” thereof. These factors identified by the ICTY have since then also been adopted by the International Criminal Court (Lubanga, paras 537-538).

 For the “organisational” criterion, Boškoski identified a number of factors and indicators, which can be grouped together in the following five categories (in random order):

 1) the existence of a command structure;

indicators: e.g. the existence of headquarters; a general staff or high command; internal regulations; the issuing of political statements or communiques; the use of spokespersons; identifiable ranks and positions.

2) military (operational) capacity of the armed group;

indicators: e.g. the ability to define a unified military strategy; to use military tactics; to carry out (large scale or coordinated) military operations; the control of certain territory, and territorial division into zones of responsibility;

3) logistical capacity of the armed group;

indicators: e.g. the existence of supply chains (to gain access to weapons and other military equipment); ability for troop movement; ability to recruit and train personnel;

4) the existence of an internal disciplinary system and the ability to implement IHL.

indicators: e.g. the existence of disciplinary rules or mechanisms within the group; training;

5) the armed group’s ability to speak with one voice;

indicators: capacity to act on behalf of its members in political negotiations; to conclude cease fire agreements.

(Boskoski, paras 194-203)

One of the main problems of the Syrian opposition is that it “remains fractious and deeply divided”. As the news article deals with the FSA, and the FSA is the largest armed opposition group, it makes sense to focus on this group for the present discussion of the organisational criterion.

As we can see, the fourth factor – based on the statements made in aforementioned  newspaper article – would appear to be lacking in the case of the FSA. “[N]o rules and no military […] order” seem to indicate the absence of an internal disciplinary system, or at least make using it rather problematic. Moreover, the BBC reported that the “FSA leadership told the UN Human Rights Council in February that commanders in the field did not receive orders from it and currently made their own rules of engagement.” In addition, the media continues to report about acts that clearly violate IHL, such as summary executions, some of which were even caught on camera. The “ability to implement IHL” does not mean that IHL necessarily needs to be respected by the concerning party at all times for the factor to be ‘fulfilled’. Similar to the requirement set by article 1(1) of Additional Protocol II that refers to the ability to implement said protocol, “the ability to implement IHL” is something entirely different from actually fighting in accordance with IHL. The ICRC commentary describes this condition of Additional Protocol II as “correspond[ing] with actual circumstances in which the parties may reasonably be expected to apply the rules developed in the Protocol, since they have the minimum infrastructure required therefor.” The ICTY explained about this factor that:

[w]here members of armed groups engage in acts that are prohibited under international humanitarian law, […] they are liable to prosecution and punishment. However, so long as the armed group possesses the organizational ability to comply with the obligations of international humanitarian law, even a pattern of such type of violations would not necessarily suggest that the party did not possess the level of organization required to be a party to an armed conflict. (Boskoski, para. 205)

 Relevant here is that the FSA leadership has announced that it wishes to apply the Geneva Conventions – as reported on a few days ago by Katharine – and apparently wishes to adhere to IHL, but has trouble making its members do so in practice. It thus seems unable to implement IHL – or at least it appears to be on the basis of some you tube clips showing apparent violations of IHL. Drawing any conclusions from such media reports is difficult, however. In this respect, the following quote from the report by the Institute for Studies of War is illustrative. It refers to an incident already some months ago and the situation may have changed by now, but this anecdote is striking nonetheless:

Some rebel leaders have attempted to impose order on their units with mixed results. In mid-March, Captain Amjad al-Hamid, one of the founding members of the Khalid bin Walid Brigade and the leader of the Rijal Allah Battalion, gave a speech in Rastan denouncing a spate of muggings and kidnappings perpetrated by insurgent groups in the area. “We have armed men among our civilians that are a burden to our revolution. They are just thieves … no different from Bashar al-Assad.” He also distanced himself from conservative Islamists in the speech. Unknown assailants killed Hamid the next day. (Syria’s Maturing Insurgency, p. 28)

 The fourth factor thus seems not to be fulfilled and also the indicator of “internal regulations” for the first factor seems to be lacking.

 However, the five factors are not determinative and their indicators serve, indeed, merely to ‘indicate’ (Boskoski, para. 193). Consequently, not all factors need to be fulfilled and the lack of an internal disciplinary system would thus not immediately mean that the organisational criterion (for the existence of an armed conflict) is not met. It is difficult to conduct a proper review of the factors on the basis of news articles and public reports. Especially, since reports in the news are often contradictory and it is often not clear which group it refers to. I will therefore only address some of the factors that show that the FSA may very well fulfil some or most of the other organisational factors.

Although the fact that young Syrians would rather join the ranks of Al-Qaida than the FSA, could indicate a problem in the FSA’s ability to recruit personnel (one of the indicators of the third factor), the FSA does not actually seem to suffer from this problem. At least as it appears on the basis of recent reports of high-level members of the Syrian armed forces defecting and joining the rebels, and the news three days ago that the Syrian Prime Minister has joined the FSA. The opposition appears to be receiving weapons and e.g. Saudi Arabia is reported to be supplying the FSA with rocket launchers and machine guns. The existence of supply chains can not easily be assessed, however, as weapons are – understandably –  supplied in covert ways.

Whereas the “internal regulations” appear to be lacking, the other indicators for the first factor seem in place: the FSA is reported to have a headquarter and command structure (Syria’s Maturing Insurgency, p. 19) with ranks and positions, it regularly issues statements and communiques and uses spokespersons to do so. The fifth factor, the FSA’s ability to speak with one voice”, is closely related to the first. There appear to indicators for this factor as a cease fire agreement was concluded. Nevertheless, the fact that the agreement was not respected might – in part – be attributed to the lack of control over its fighters and disagreement between different fractions. Concluding a cease fire agreement is one thing, but making sure that it binds all members of a group is another. Also the second factor seems mostly fulfilled, although the news reports are not always clear about whether certain operations or attacks can be attributed to the FSA or were actually conducted by other fractions of the opposition. However, military tactics appear to be used (at least for certain attacks), large scale and coordinated military operations are conducted. The Syria’s Maturing Insurgency report mentions regional divisions, and albeit relative in size, the FSA does control certain territory and can openly patrol the streets, even in certain parts of Syria.

 This brief analysis, based on public sources only, shows that it is not all that easy to use the  Boskoski-factors and indicators to assess whether the FSA is sufficiently organised for the fighting (between the armed forces of the Syrian government and the FSA) to rise to the level of an non-international armed conflict. Several of the factors and indicators appear to be in place, but others are seemingly (still) lacking. Based on the sources referred to in the above analysis, I would argue that the organisational requirement is fulfilled. More important, however, is the fact that the ICRC, which has first hand information about the situation on the ground and often refrains from referring to a situation as an armed conflict, has chosen to qualify the situation in Syria as a non-international armed conflict. The ICRC must therefore consider the organisational requirement to be met for at least the central core of the FSA. It is hard to determine which affiliated groups or bands are to be considered as part of this armed group that then has met the organisational requirement. Importantly though, once IHL has become applicable because the lower threshold of a non-international armed conflict has been reached, it binds every party to that conflict – irrespective of whether the concerning party would in itself be insufficiently organised (with respect to the criteria that brought about the non-international armed conflict).