James P. Rudolph, an attorney and former official at the US Agency for International Development, argues that the Syrian government must follow stricter rules of engagement and could potentially be prosecuted for harsher war crime charges with the application of Common Article 3 of the Geneva Conventions...
he conflict in Syria — in which fighting between government forces loyal to President Bashar al-Assad and opposition forces has resulted in the deaths of upwards of 15,000 men, women and children — is now covered by common Article 3
of the Geneva Conventions. While at first blush this seems to be an unimportant pronouncement, the reality is far different. With the application of Common Article 3, Assad and his forces must now abide by new rules of engagement vis-à-vis the opposition. More significantly, however, civilians in Syria will receive more legal protections and Assad and his forces will be subject to stiffer war crimes charges.
Common Article 3 ("common" because it applies to all of the Conventions) was included because so-called Geneva law applies only to international armed conflict. Obviously, the parties to an internal conflict are also deserving of legal protections, but a strict reading of the text leads to a fundamentally unfair reality: Those involved in non-international conflict — i.e., civil wars and the like — are not extended the same level of humane treatment. Thus, Common Article 3, which applies "in the case of armed conflicts not of an international character," was meant to fill this inequitable lacuna.
The critical question, though, relates to timing: when does the internal fighting, which may appear to some as nothing more than lawlessness or brigandage, reach the level of intensity necessary to trigger the application of Common Article 3? Fortunately for us, the International Committee of the Red Cross
(ICRC), the unimpeachably impartial and trustworthy custodian of humanitarian law, provides an answer. The fighting must be particularly intense, it must be of significant duration and the opposition fighters battling government forces must be reasonably well-organized.
In the case of Syria, then, the fighting has raged for 16 months. This element — the duration of the conflict — is thankfully not in dispute. Additionally, the intensity of the fighting, during which tens of thousands of Syrians have been shot, tortured and murdered, is also not seriously doubted. Indeed, US Secretary of State Hillary Clinton
, in response to questions about Assad's conduct, has strongly suggested that at this stage he could be considered a war criminal. Furthermore, a UN panel concluded
in March that "gross human rights violations" had been ordered as a matter of state policy. Every day seems to bring news of horrific clashes between the opposition and the government. Just last week in the village of Tremseh
, a mass killing left more than 100 dead. Tremseh, along with Hama, Houla
can now be added to the list of villages and cities torn asunder by Assad and his rampaging armies.
However, Assad is hotly contesting the third element: the extent to which opposition forces have organized themselves. According to Assad and his associates, the so-called "rebels" or "opposition" forces are nothing but terrorists. This term is customarily used by the government to refer to armed rebels. However, it beggars belief to suppose that President Assad's judgment can be trusted, because he has reasons for negating Common Article 3 applicability.
Leaders faced with internal armed disorder and disturbances are understandably reluctant to invoke Article 3, because they are loath to elevate the political or legal status of the insurgents, whom they see as common criminals. This is why Common Article 3 explicitly provides that its application "shall not affect the legal status of the Parties to the conflict." In other words, "terrorists" and "criminals" won't become rebels, insurgents or opposition forces (with the concomitant legitimacy that attaches to those terms) simply because they are now entitled to greater protections on the battlefield. Yet it goes without saying that Assad himself cannot be the final word on the application of Common Article 3. We must look, instead, to the facts on the ground.
Syrian opposition forces were initially seen as weak, divided and disorganized. Now, however, opposition forces have been battling the government quite successfully. The Free Syrian Army, composed mainly of defectors from the official Syrian Arab Army, operates throughout the country and has a command hierarchy. Its commander, Riad al-Assad, is a former Colonel in the Syrian Air Force. Although not in control of vast sections of Syria, UN Secretary-General Ban Ki-Moon
has noted that "significant parts of some cities" appear to be under the de facto
control of the Free Syrian Army. In addition, as reported by the Economist
: "[A]lmost incessant shelling by government forces has not prevented rebels from keeping de facto control of swathes of territory, including parts of the border with Turkey which is 900km (560 miles) long." Moreover, the Syrian National Council, a coalition of opposition forces, has been recognized by three permanent members of the UN Security Council: France, the United Kingdom and the US. The opposition is, in other words, quite well-organized. Indeed, if verified, reports of the recent assassination of top-level government officials — including the Syrian defense minister and Assad's brother-in-law — would indicate that the opposition is not only organized but also increasingly sophisticated in its use of improvised explosive devices.
It seems clear to everyone but Assad that Common Article 3 of the Geneva Conventions applies to the fighting in Syria. Accordingly, Assad and his forces will henceforward be held to a higher standard, and their failure to extend protections to opposition fighters and innocent civilians will only add to the already-long list of crimes committed by a desperate and discredited regime.
James P. Rudolph is a lawyer licensed in California and Washington, D.C. who focuses on international law and human rights. He worked at the US Agency for International Development during the administration of President Bill Clinton.
Suggested citation: James Rudolph, Syrian Conflict Governed by Common Article 3 of the Geneva Conventions, JURIST - Sidebar, July 23, 2012, http://jurist.org/sidebar/2012/07/james-rudolph-syria-geneva.
This article was prepared for publication by Jordan Barry, an associate editor for JURIST's professional commentary service. Please direct any questions or comments to him at email@example.com