The Legal Significance of the ICRC’s Recent Declaration for International Humanitarian Law in Syria

          On Sunday July 15, Hicham Hassan, spokesperson for the International Committee of the Red Cross (ICRC), announced that hostilities in Syria have reached the threshold of an “armed conflict not of an international character”, an internal armed conflict, or what the media has been referring to as a “civil war”. News outlets and social media have jumped on this proclamation and made it a headline, but what does it really mean?  Since April, the ICRC has considered hostilities in parts of the country, like Homs, to fit this classification. However, this is the first time the organization has applied it to the entire country.  The declaration of a situation as an “armed conflict not of an international character” has significant legal ramifications as it means international humanitarian law (IHL) governs the conduct of warring parties.  Mr. Hassan stressed that while some locations within Syria remain untouched by hostilities, the spread of violence from Homs, Hama and Idlib, the focal points of the conflict, into other regions of Syria, warranted an extension of the classification to reflect the conflict’s current scope.

          For the purposes of the Geneva Conventions, “armed conflict[s] not of an international character” are violent struggles between a national government and organized opposition groups or between two or more organized non-state groups operating within a particular country.[1]  While there are no clear cut criteria for determining when hostilities rise to the level of an armed conflict, two factors: the intensity of the conflict and the organization of the parties to the conflict, are typically considered.  In contrast to riots, general law enforcement operations, or sporadic acts of violence, international humanitarian law only applies during situations that look like international war.  Moreover, whether a group operates under a clear chain-of-command and controls territory are strong, but not exclusive, factors in evaluating whether it is “organized” for the purposes of this classification.  The ICRC itself has recognized that “the scope of application of the [classification] must be as wide as possible.”[2]

          This classification is important since it determines what bundle of laws applies to a particular conflict.  As an “armed conflict not of an international character,” Common Article 3 of the Geneva Conventions applies, providing a minimum set of protections during conflict.  These protections however, are far more limited than those which apply during international armed conflict, or conflict between nations.  In its entirety, Common Article 3 states:

In the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties, each Party to the conflict shall be bound to apply, as a minimum, the following provisions:
(1) Persons taking no active part in the hostilities, including members of armed forces who have laid down their arms and those placed ‘ hors de combat ‘ by sickness, wounds, detention, or any other cause, shall in all circumstances be treated humanely, without any adverse distinction founded on race, colour, religion or faith, sex, birth or wealth, or any other similar criteria.  To this end, the following acts are and shall remain prohibited at any time and in any place whatsoever with respect to the above-mentioned persons:  (a) violence to life and person, in particular murder of all kinds, mutilation, cruel treatment and torture; (b) taking of hostages; (c) outrages upon personal dignity, in particular humiliating and degrading treatment; (d) the passing of sentences and the carrying out of executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.

(2) The wounded and sick shall be collected and cared for.  An impartial humanitarian body, such as the International Committee of the Red Cross, may offer its services to the Parties to the conflict. The Parties to the conflict should further endeavour to bring into force, by means of special agreements, all or part of the other provisions of the present Convention. The application of the preceding provisions shall not affect the legal status of the Parties to the conflict.[3]

Although the international community expanded the written legal principles applicable to certain types of internal conflicts in 1977 with the creation of Additional Protocol II to the Geneva Conventions, Syria has failed to ratify the Protocol, and therefore is not bound by the rules codified in this text. Nonetheless, it is still bound by unwritten customary international humanitarian law, rules which nations consent to follow out of a sense of legal obligation[4], in effect bringing most of the provisions of the Geneva Conventions into play.

          While it is unclear whether the application of this body law will change behaviors in Syria, it opens the door for the international community to hold violators of the law accountable for war crimes committed during the conflict.  Human rights observers in Syria have estimated the death toll from the conflict to be near 15,000; the majority of which they say are civilians.  Reports from human rights organizations also allege that the regular Syrian military, as well as government sponsored militant groups, have targeted civilians during combat, used children as human shields, and tortured suspected opposition sympathizer.  All of these acts are prohibited by international humanitarian law and, if evidenced, may amount to war crimes prosecutable under international law.  The Syrian government denies these charges.


[1] International Committee of the Red Cross, International Humanitarian Law and Terrorism: Questions and Answers, Jan. 1, 2011 available at http://www.icrc.org/eng/resources/documents/faq/terrorism-faq-050504.htm.

[2] International Committee of the Red Cross, Commentary on Common Article 3 of the Geneva Conventions of 1949, 2005 available at http://www.icrc.org/ihl.nsf/COM/375-590006?OpenDocument.

[3] Common Article 3, Geneva Convention (III) Relative to the Treatment of Prisoners of War, Aug. 12, 1949 available at http://www.icrc.org/ihl.nsf/WebART/375-590006.

[4] International Committee of the Red Cross, Customary International Humanitarian Law, Oct. 29, 2010 available at  http://www.icrc.org/eng/war-and-law/treaties-customary-law/customary-law/overview-customary-law.htm (The ICRC describes the rules of customary international law as deriving from “a general practice accepted as law.  To prove a certain rule is customary, one has to show that it is reflected in state practice and that the international community believes that such practice is required as a matter of law”).

One response to “The Legal Significance of the ICRC’s Recent Declaration for International Humanitarian Law in Syria

  1. Pingback: Border Skirmish, No – “International Armed Conflict”, Yes: The Case of Syria and Turkey « Humanity in the Midst of War·

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