The Syrian Civil War and the Achilles' heel of the law of non-international armed conflict.
KEYWORDS: Law of Armed Conflict, Non-international Armed Conflict, International Humanitarian Law, Combatant Status, Syrian Civil War, Prisoner of War
INTRODUCTION I. THE SYRIAN CIVIL WAR AND THE ACHILLES' HEEL OF THE LAW OF NON-INTERNATIONAL ARMED CONFLICT A. The Syrian Civil War--General Overview B. Executions by Government and Anti-Government Forces II. THE STATUS OF NON-STATE ARMED GROUPS IN NON-INTERNATIONAL ARMED CONFLICT A. Recognition of Belligerency B. The Geneva Conventions and the Additional Protocols 1. The 1949 Geneva Conference and the Treatment of Non-International Armed Conflicts 2. The Prosecution of Insurgents and the Preparatory Works of AP II C. Ad Hoc Attempts to Bridge the Gap III. BACK TO THE DRAWING BOARD A. A Delicate Balance B. What Should Trigger the Doctrine's Application? C. What Protection Should Be Accorded? D. How to Introduce this New Regime? CONCLUSION
Non-international armed conflicts (NLACs) are said to constitute "the most frequent and cruelest form of armed conflict." (1) NIACs, however, have long been under-regulated and under-examined (2) because of the reluctance of States to acknowledge that a situation of violence amounts to an armed conflict, (3) triggering the application of the law of armed conflict (4) (LOAC), and an unwillingness to grant legitimacy to armed groups operating on their soil. Up until the adoption of the Second Additional Protocol to the Geneva Conventions (AP II) in 1977, NIACs were only expressly governed by a single treaty provision, Article 3, common to all four Geneva Conventions (Common Article 3). (5) This imbalance has partially been remedied over the past years. The normative framework governing NLACs has expanded considerably, both as a result of the adoption of AP II in 1977, (6) and as a result of the emergence and crystallization of customary international law in this area. (7) Furthermore, with the development of international criminal law and the advent of the International Criminal Court (ICC), prospects for the enforcement of violations in NIACs have improved. Simultaneously, academic attention has increased as several tomes now engage the law of non-international armed conflict in an in-depth manner. (8)
And yet, as the focus has shifted to questions relating to the detention of unlawful combatants (9) and questions of conflict classification, (10) one would almost forget that the edifice of the law of non-international armed conflict remains unfinished. A fundamental flaw indeed remains, which structurally undermines the compliance pull of the legal framework.
As is well-known, in international armed conflicts, lawful combatants, who fall within one of the categories spelled out in Article 4(a) Geneva Convention III, (11) enjoy the so-called "combatant privilege." This implies that they have a recognized right to take direct part in hostilities and cannot be punished merely for doing so. In addition, upon capture, they will enjoy prisoner of war (POW) status and the far-reaching protection offered by the Third Geneva Convention. (12) At the close of hostilities, they must be repatriated. By contrast, in the current state of the law, organized armed groups taking direct part in a NIAC--irrespective of the intensity or duration of that conflict--are not granted the combatant privilege, nor are they granted POW or similar treatment upon capture. (13) Quite the contrary, LOAC condones State prosecution and punishment of members of non-State armed groups (NSAGs) (14) taking part in the conflict for committing offences under domestic penal law, even if they fully comply with LOAC (e.g., the killing of a member of the regular armed forces in combat will generally be qualified as murder under domestic criminal law). Moreover, LOAC accepts the imposition of the death sentence upon members of NSAGs, at least insofar as domestic law foresees this possibility. Common Article 3 of the Geneva Conventions (GC) merely requires that the judgment be pronounced by a "regularly constituted court" affording minimum judicial guarantees. (15) In turn, Article 6 of AP II, if applicable, provides for a series of judicial guarantees, but only bans the death sentence in relation to minors. (16) International human rights law, which continues to apply during armed conflicts insofar as it is not set aside by the lex specialis of LOAC, (17) does not alter the foregoing. There indeed exists no general rule of international human rights law that prohibits the death penalty (notably, even those specific treaty instruments that provide for an abolition of the death penalty concede that States may continue to apply the death penalty with respect to acts committed at war). (18)
It is true, as will be observed below, that on a handful of occasions States fighting rebel forces have accepted them as lawful combatants by recognizing a situation of belligerency. Throughout the Charter era, a similar result has at times been brought about by unilateral commitments or by bilateral agreements between the fighting forces. In the end, however, States are not legally obliged to grant such concessions and, in many large-scale NIACs, no combatant privilege was afforded to members of the armed group.
The Syrian Civil War is a prime example. In December 2011, the Assad regime introduced a new law recommending the death penalty for anyone found arming "terrorists." (19) And in July 2012, Syria passed three new counter-terrorism laws, which stipulate that:
Those who create or direct terrorist groups may be sentenced with 10 to 20 years of hard labor, but the punishment may be more severe if the goal is to change the regime or the structure of the state. If these (terrorist) acts result in death or disability for the victims, the death sentence may be imposed. (20)
The regime has set up a terrorism court as well as various military field courts, both of which may confer capital sentences. (21)
In spite of the foregoing, it is widely recognized that immunity from prosecution for taking part in hostilities is a crucial incentive for compliance with the law of non-international armed conflict. (22) Rebel fighters in a civil war who know that they will face grave sentences, and even the death penalty, upon being captured--irrespective of whether or not they abide by the laws of war--have little incentive to fully comply with those laws. (23) For such rebels, the law is all sticks and no carrots, and victory at any cost may be perceived as the only way to ensure their survival. It is a regrettable reality of civil war, that when such rebel forces capture members of the regular armed forces, they may inflict upon them the same fate which their captured comrades undergo. As Vattel warned in 1758, "[I]f the Sovereign believes he is entitled to make prisoners hang, as rebels, the opposing party will have recourse to reprisals.... The Civil War will become cruel, terrible and ever more fatal to the Nation." (24) In sum, the non-recognition of the combatant privilege on the part of rebel fighters--and, in particular, their exposure to heavy sentences solely on the basis of their taking part in the armed conflict--greatly reduces their incentive to comply with LOAC. This, in turn, is likely to instill less incentive to comply on the part of the State armed forces. The result, as illustrated by the widespread massacres and other war crimes committed by all sides in the Syrian Civil War, is a downward spiral characterized by increased disregard for the laws of war and for the fate of the civilian population, further embedding the deep feelings of hostility between the opposing sides and making a political solution all the harder to reach.
The central thesis of this Article is that in cases of full-scale civil war between a de jure government and one or more NSAGs, where rebel groups control substantial parts of the State's territory and are able and willing to comply with LOAC, they should be accorded a combatant-like status. Crucially, granting such status should no longer be made contingent on the ad hoc consent of the de jure government. Part I briefly explains how the Syrian Civil War illustrates a fundamental weakness in the law of non-international armed conflict. Part II analyzes how LOAC has dealt with the status of NSAGs until the present, addressing in particular the recognition of belligerency doctrine, the preparatory works of the Geneva Conventions and AP II, and ad hoc arrangements in NLACs. Part III makes the case for a further evolution of LOAC in this context and lists various tentative suggestions as to what a possible solution could look like.
I. THE SYRIAN CIVIL WAR AND THE ACHILLES' HEEL OF THE LAW OF NON-INTERNATIONAL ARMED CONFLICT
A. The Syrian Civil War--General Overview
The war began as an uprising in March 2011 and as a part of the wider Arab Spring protest movement, during which Syrians took to the street to demand the resignation of President Bashar Assad. As the Syrian army and police apparatus engaged in a brutal crackdown of the demonstrations, violence quickly escalated, 23 24 over time also becoming increasingly sectarian in nature. (25) If the international community was initially reluctant to recognize the situation as an armed conflict (26)--instead only commenting on massive human rights violations and repression--the International Committee of the Red Cross (ICRC) (the official guardian of LOAC) in July 2012 expressly concluded that the conflict should be considered a NIAC. (27) The August 2013 report of the Independent International Commission of Inquiry on the Syrian Arab Republic (Commission of Inquiry) leaves little to the imagination: "[Syria] is a battlefield. Its cities and towns suffer relentless shelling and sieges. Massacres are perpetrated with impunity. An untold number of Syrians have disappeared." (28) In July 2013, the United Nations (U.N.) reported that more than 100,000 people had been killed, a figure that has further risen in the meantime. (29) At the end of 2013, over two million refugees had fled the country. (30)
At the time of writing, there were believed to be as many as 1,000 armed opposition groups in Syria, commanding some 100,000 fighters. (31) The largest armed opposition group is the Free Syrian Army (FSA), formed by Army deserters in 2011. The FSA has various members, representing different fronts in the war, as well as a variety of affiliates. While the FSA is headed by a Supreme Military Council, (32) observers have stressed that the FSA is simply a loose network of brigades rather than a unified fighting force. (33) Apart from the FSA and its affiliates, there are various armed groups that operate more or less independently, including a number of jihadist groups, such as the Al-Nusra Front and the Islamic State of Iraq and the Levant (ISIS), thought to have links to Al Qaeda. Mention must also be made of the Popular Protection Units (YPG), i.e., the armed wing of the Kurdish political party PYD, which runs the de facto autonomous Kurdish zone in northeastern Syria. Each of the aforementioned groups wages war on the forces of the Assad regime. There have, however, also been skirmishes between different armed opposition groups over control over parts of the Syrian territory, most notably between ISIS and other rebel groups. (34)
The Free Syrian Army is formally represented in and is to a certain extent seen as the military wing of the Syrian Opposition Council, (35) which in turn has been recognized in one form or another as the legitimate representative of the Syrian people by more than 100 States and organizations (including the European Union, the United States, the Arab League, and the Gulf Cooperation Council). (36)
Other rebel groups have, however, expressly distanced themselves from the "foreign-based" Syrian Opposition Council and its proposed government. (37) Some three years into the Syrian Civil War, the situation has reached a military deadlock with no political solution in sight. At the time of writing, the Syrian army continued to control most major cities (including Damascus), yet anti-government armed groups controlled large swathes of the northern and eastern govemorates, as well as areas along the Jordanian border. (38) A second round of peace talks between the Assad regime and the main rebel groups (the so-called "Geneva II talks") in early 2014 produced no meaningful result. (39) One notable feature of the Syrian Civil War--which raises important legal questions that are beyond the scope of the present contribution (40)--is the degree of foreign intervention on both sides, ranging from the dispatching of troops; (41) the provision of weapons, military training, (42) and "non-lethal" support; (43) to the provision of funding. (44) The Commission of Inquiry has concluded in this respect that the mounting inflow of fighters and equipment from third States has led to a rise in corresponding violence. (45) Syria has not ratified AP 0 (nor the Rome Statute of the International Criminal Court for that matter), implying that, from an LOAC perspective, the civil war is governed only by Common Article 3 and relevant customary international law.
B. Executions by Government and Anti-Government Forces
As indicated at the outset, the Assad regime does not regard any of the armed groups operating on its soil as lawful combatants. Instead, in spite of the fact that it has lost control over large parts of its territory, the Regime has chosen to treat all rebels--whether foreign jihadists or "native" FSA militias--as "terrorists." In accordance with the 2012 Counter-Terrorism Law such "terrorists," when they have committed acts resulting in death or disability for the victims, can suffer the death penalty or be sentenced to long prison terms. According to the August 2013 report of the Commission of Inquiry:
A "terrorism court" was established to hear cases that violate the 2012 Anti-Terrorism Law. Accused were not informed of the allegation, nor were they afforded timely access to counsel. The Government also established military field courts. No legal representation, family visits or appeals were allowed, yet judges may confer capital sentences. (46)
Additionally, field executions regularly take place during military operations without any form of court trial, let alone a trial that complies with minimum due process standards.
In turn, armed groups have also established various quasi-judicial and administrative mechanisms in the territory they control. Essential judicial and procedural guarantees are rarely accorded and most judicial mechanisms do not reach the required level of independence and impartiality. (47) Moreover, while practices vary strongly, some "quasi-judicial" mechanisms apparently impose death sentences on government soldiers merely for taking part in the armed conflict, while others impose prison sentences.
Thus, according to the report of the Commission of Inquiry of July 2013: (48)
In Aleppo, Damascus, Dara'a, Idlib, Dayr az Zawr and Ar Raqqah govemorates, civilians and hors de combat Government soldiers were sentenced and executed without due process. Armed groups apply the loose standard of 'having blood on one's hands' to denote responsibility for criminal conduct deserving the death penalty. In Dara'a and Ar Raqqah, armed groups used public show trials and executions of detainees affiliated with the Government to assert their authority and instill fear among civilians .... On 14 May, fighters claiming to be from [ISIS] executed three Alawite men in a public square in Ar Raqqah city. The judgment stated that the execution was in retaliation for the massacre in Baniyas and Homs on 2 and 3 May. A series of trials in Ar Raqqah city and in Al-Shajarah (Dara'a) in April had sectarian dimensions. Witnesses stated that captured Alawite soldiers were consistently found guilty and executed, while non-Alawites were imprisoned or released.
And according to the report of August 2013: (49)
In Hamah, persons arrested or captured by armed brigades are transferred to one of two parallel quasi-judicial mechanisms, following military interrogation.... A captured soldier or pro-government fighter who 'confesses' faces immediate execution, without referral to the sharia committee. On 20 May, a captured soldier was executed ... after confessing to killing a fighter for the [FSA],
In sum, among other widespread war crimes, both government and antigovernment forces hold mock trials and commit quasi-summary executions.
It is noted in this context that the insistence of the Assad regime to treat the rebel groups as "terrorists," and to subject them to long prison sentences or the death penalty upon capture, may go some way in explaining--not to be confused with justifying--why rebel groups respond in kind, and, more generally, why both sides present endemic disregard for the laws of war. It is broadly recognized that threatening the death penalty for merely participating in hostilities greatly reduces the incentive on the part of rebel groups to comply with LOAC. (50) An interesting study by Bangerter of the reasons why armed groups choose to respect or not respect LOAC corroborates this position. (51) Relying on discussions with, and documents of, some sixty armed groups around the world, Bangerter identifies several factors inducing noncompliance with LOAC, such as moral convictions, concern for public relations, and support of the people. Prominent among the factors leading to noncompliance is the armed groups' impression that they may have nothing left to lose:
Taking a solely repressive approach to armed groups amounts to encouraging them to violate the law. With no alternative for their own protection other than a military victory or a stalemate leading to a political compromise, they will tend to ignore any reasons they might have for respecting the rules of IHL. (52)
Below we examine how LOAC has dealt with this conundrum. In a subsequent Subpart, it is argued that LOAC ought to evolve so as to accept some sort of combatant-like status on the part of armed groups in certain situations.
II. THE STATUS OF NON-STATE ARMED GROUPS IN NON-INTERNATIONAL ARMED CONFLICT
A. Recognition of Belligerency
Up until 1949, it was simply not envisioned that intra-State conflicts between the State authorities and a non-State armed group would be regulated through LOAC. Conflicts within a State were generally seen as taking three possible forms: rebellion, insurgency, or belligerency. (53) At the low end of the spectrum of violence were rebellions, which were of low intensity and were deemed to be solely internal matters for the State concerned. One step above were "insurgencies," which involved more sustained, large-scale violence. Again, these "insurgencies" were treated exclusively under domestic law, not LOAC, unless, and only to the extent that, the territorial State expressly agreed to apply rules of LOAC on an ad hoc basis. As Lauterpacht points out, international law knew of "no 'recognition of insurgency' as an act conferring upon insurgents international rights flowing from a well-defined status." (54) Not only were State authorities free to recognize or ignore a situation of insurgency, but they were also free to choose which rules to apply a la carte from the LOAC framework. In addition, such recognition did not bring into play the laws of neutrality for third States. (55)
The latter two aspects distinguish insurgency from "belligerency," a notion reserved for large-scale and protracted armed conflicts akin to a war between States. "Recognition of belligerency" could take two forms. Recognition of belligerency by a third State brought into play the law of neutrality between that State and the parties to the armed conflict. By contrast, recognition of belligerency by the parent State--which is more relevant for present purposes--triggered the application of LOAC between the parties to the conflict, and subjected the parent State to neutrality law in its relations with third States. (56) The two types of recognition were completely detached from one another. As Sivakumaran puts it in his seminal analysis of the law of non-international armed conflict:
[R]ecognition of belligerency on the part of States other than the parent State left the parent State free to treat members of the armed group as traitors.... Likewise, if the parent State recognized belligerency, other States were not bound by the law of neutrality, although the parent State was bound by the law of neutrality in relation to these other States. (57)
The only linkage between the two was that "widespread recognition on the part of States served to induce the parent State to grant recognition." (58) Recognition of belligerency by the parent State triggered the application of the full body of LOAC between the State and the armed group, and not just an a la carte selection thereof. Crucially, it also meant that members of the armed group received combatant immunity and benefitted from POW status upon capture.
Recognition of belligerency was in principle reserved to situations that met several objective criteria (each of which was nonetheless subject to considerable debate): (1) the existence of a civil war "accompanied by a state of general hostilities"; (2) control over a substantial part of the territory by the armed groups; (3) the possession of a quasi-govemmental administration by the armed group; and (4) compliance--or, according to some, the "capacity to comply"--with LOAC. (59) While some have considered, arguably correctly, that the territorial State always had the right to recognize an armed group as belligerents, even in case of nonfulfillment of the aforementioned criteria, (60) the same was not true vis-a-vis third States. Indeed, for third States to recognize belligerency, each of the objective elements had to be met. In addition, a further condition precedent applied--the conflict had to "affect" the third State, thus requiring it to determine its treatment of the parties thereto. Premature recognition could amount to unlawful interference in the domestic affairs of the territorial State. (61)
Conversely, it is generally agreed that fulfillment of the cited criteria did not give rise to a duty on the part of the territorial State, nor of third States, to recognize belligerents. It is worth noting, however, that at this juncture, there was already discussion regarding whether or not the law should change in this regard. (62) The fact that recognition of belligerency normally required the consent of the parent State and of the third State concerned was slightly "mitigated" by the acceptance that belligerency could also be recognized tacitly or implicitly without an express declaration to this end (for example, by declaring a maritime blockade, (63) by conferring rights on the high seas, by entering into treaties with the armed groups, or by engaging in prisoner of war exchanges). (64) Ultimately, recognition of belligerency was a rare phenomenon, and relevant State practice proved highly inconsistent. Various conflicts, such as the Spanish Civil War, which arguably would have lent themselves to the doctrine of belligerency, were instead regarded as insurgencies, with States (for political reasons) refraining from recognizing belligerency.
Even if the doctrine of belligerency theoretically remains valid today, it has arguably not been applied since the end of the World War II. (65) Two factors may account for this: first, the creation of a modest set of rules (with the adoption of Common Article 3 and later AP II) applicable to NIACs irrespective of issues of "recognition"; and second, the recurrent recourse to unilateral declarations or bilateral agreements providing for an a la carte application of certain parts of LOAC. What is important to note in this context is that, contrary to what was to some extent the case in the past, State practice suggests that the possibility of de facto recognition of belligerency has been abandoned.
Indeed, on various occasions States have engaged in prisoner exchanges with NSAGs operating on their soil, concluded agreements with such groups, "declared war" on such groups, or recognized the existence of a "civil war," without such conduct being regarded as activating the full body of LOAC (including the granting of the combatant privilege to members of these armed groups). In a similar vein, in relation to Israel's naval blockade of Gaza, the Turkel Commission noted that recognition of the applicability of the law of naval blockades to NIACs "should not be interpreted in any way to suggest that the historic doctrine of 'belligerency' is applicable or appropriate." (66) Sivakumaran concludes that the various acts that gave rise to de facto recognition of belligerency in the past have been divorced from this doctrine. In other words, customary international law has taken a step back and now requires that belligerency "be recognized explicitly in order for its consequences to take effect." (67)
B. The Geneva Conventions and the Additional Protocols
1. The 1949 Geneva Conference and the Treatment of Non-International Armed Conflicts
Since 1945, Common Article 3 and AP II have broken the taboo that LOAC should not meddle with internal armed conflicts and have introduced a set of rules protecting the civilian population, as well as mandating humane treatment with regards to those taking part in hostilities (and those hors combat). At the same time, the fundamental premise remains intact: Members of NSAGs do not enjoy combatant privilege and cannot claim POW protection, but are instead exposed to criminal prosecution and punishment (including capital punishment) under domestic law.
It is clear from the Final Records of the Diplomatic Conference of Geneva of 1949, however, that this outcome was not anticipated at the outset. (68) Indeed, Article 2(4) common to the four Draft Conventions prepared at the 17th International Red Cross Conference (the 1948 "Stockholm draft") (69) originally envisaged that the Conventions would apply in their entirety to "all cases of armed conflict not of an international character which may occur in the territory of one or more of the High Contracting Parties"--"whatever the legal status of the Parties to the conflict and without prejudice thereto." (70) For the draft POW Convention and the draft Civilians Convention, Article 2(4) additionally introduced a reciprocity requirement: High Contracting Parties were bound to the latter Conventions in non-international armed conflict
"subject to the adverse party likewise acting in obedience thereto." (71)
During the 1949 Conference, draft Article 2(4) gave rise to lengthy and intense debates between the different Delegations. (72) Thus, within the Joint Committee (73) and its Special Committee, (74) several States expressed the feeling that the extension of the Convention to all NIACs was too sweeping. It was argued that such an extension "would appear to give the status of belligerents to insurgents, whose rights to wage war could not be recognized," (75) and that, in doing so, the Conventions would strike at the heart of State sovereignty. (76) A number of States insisted that "[e]very government ha[s] a right to suppress rebellion within its borders and to punish the insurgents in accordance with its penal laws." (77) Greece, for example, warned that draft Article 2(4) implied that if a rebellion were to be incited by a few factious parties, the rebels could not be charged with crimes against common law committed before their arrest, and would automatically be granted a pardon at the end of the disturbances. According to Greece, such an approach "might incite political opponents to take up arms against a legitimate government." (78)
The foregoing objections led States to consider further restricting the type of NIACs to which the Conventions would apply. A variety of proposals were put forward. Spain, for example, suggested that the Conventions should only be applied "in cases where the legal government was obliged to have recourse to the regular military forces against insurgents militarily organized and in possession of a part of the national territory." (79) The United States proposed more stringent criteria. According to the United States, the Conventions should apply either if the territorial government had extended recognition to the rebels, or if a number of cumulative requirements were met:
(1) The insurgents must have an organization purporting to have the characteristics of a State. (2) The insurgent civil authority must exercise de facto authority over persons within a determinate territory. (3) The armed forces must act under the direction of an organized civil authority and be prepared to observe the ordinary laws of war. (4) The insurgent civil authorities must agree to be bound by the provisions of the Convention. (80)
The U.S. proposal received support from a number of States (81) and served as the basis for a new draft drawn up by the first Working Party within the Special Committee. (82)
While a number of States took the view that the application of the Conventions to NIACs should hinge on objective/factual elements only, Australia (and Canada to a certain extent) insisted that the application of the Convention presupposed that the de jure government had recognized the rebels as belligerents (even if for the purposes of the Conventions only). (83) Others suggested that in case of a dispute as to the application of the factual criteria, the decision relating to the implementation of the Conventions to a given NIAC could be left to the U.N. Security Council, (84) or to an arbitrator or fact-finding body. (85) The United Kingdom at one point suggested that the Conventions should apply only after a period of six months, dating from the beginning of the conflict, and that the International Court of Justice (ICJ) should be competent in case of disputes regarding their applicability. (86)
Apart from the foregoing divergences of opinion, the debates were further hampered by a second difficulty. As a number of States were keen to point out, for certain provisions of the Conventions, it was simply impossible to apply them ipso facto to NIACs. This was particularly true for the Convention dealing with the protection of civilians, and more specifically for the provisions relating to occupied territories. (87) The United Kingdom, for instance, pointing to the provision which indicated that protected persons in an occupied territory were only to be employed in public utility services and were not to be compelled to serve in the armed forces, commented dryly that the provision "would automatically put an end to civil war. But that was certainly not what the authors of the Convention had in mind." (88) In light of the foregoing, the Working Party came up with a new and separate draft specifically for the Civilians Convention, providing that the Parties to an armed conflict not of an international character should "act in accordance with the underlying humanitarian principles of the [Civilians] Convention." (89)
Within the Special Committee, the feeling emerged that there were two ways to tackle the matter: either (1) to limit the cases of conflicts not of an international character to which the Conventions would apply; or (2) to restrict the provisions of the Conventions which should be applied in conflicts not of an international character. (90) Although it was explicitly conceded that "[t]hese two ways did not exclude each other," (91) States opted exclusively for the second approach, rather than for a combination of the two. Indeed, in light of the diverging views relating to the circumstances in which a NIAC would amount to a full-scale civil war warranting the application of (most of) the Conventions, as well as the rigidity and complexity of some of the criteria proposed, (92) States chose the far more modest, and less controversial, alternative.
At the instigation of France and others, (93) it was decided that only a core of humanitarian provisions would apply to situations of non-international armed conflict--i.e., those currently found in Common Article 3 GC. (94) By contrast, all other provisions of each of the four Geneva Conventions would apply exclusively to international armed conflicts. At the same time, the scope of application of Common Article 3 was broadened to all NIACs, instead of being limited to certain cases of full-scale civil war. A number of States considered this approach unsatisfactory. The United States, for instance, thought it "unfortunate if the obligation were not laid upon the Contracting States to apply the Conventions in certain instances of civil war." (95) Denmark in turn stressed that States "are in certain cases obliged in international law, to recognize as belligerents, Parties which are not States and that the question cannot be solved unless rules and conditions of this kind are embodied in the Convention." (96) The United Kingdom for its part noted more pragmatically that "if civil war developed to considerable proportions, there would be an inclination on both sides to introduce, by special agreements, as many as possible of the provisions of the Convention." (97) And according to the Swiss delegation, "half a loaf [was] better than no bread." (98) In the end, the Plenary meeting confirmed the "minimalist" humanitarian option of Common Article 3, while encouraging the conclusion of special agreements by the parties to the conflict.
If the preparatory works shed light on the genesis of Common Article 3, several interesting issues were moreover discussed in the margin--for instance, the reason why NSAGs may be bound by rules of LOAC. (99) It is worth noting, for example, that while a number of States expressed the view that every government had the right to punish insurgents in accordance with its penal laws, (100) the question was raised whether this right survived in the situation of a full-scale civil war. (101) The Norwegian delegation effectively submitted a proposal that would have prevented the lawful government from punishing rebels "on the sole grounds of having taken part in the conflict." (102) While it was felt that the proposal fell beyond the scope of the common articles (and thus beyond the competence of the Joint Committee and its Special Committee), (103) some States expressed sympathy for the idea. Thus, when Norway pointed out that, according to the draft provision under discussion, "a government with the intention of executing combatant insurgents ... would be at liberty to do so," the United States replied that "[i]t was necessary that the de jure government should treat insurgents as regular combatants." (104) The United Kingdom for its part thought it "anomalous to protect insurgents by a Convention during a rebellion and treat them as traitors at the close of it." Accordingly, it might be "necessary to suggest that the signatory countries agree to amend their penal law to prevent them from condemning vanquished rebels on the sole grounds of having borne arms against the legal government." (105) Conversely, Burma--notably the only Committee member to argue that NLACs ought to be ignored completely in the Geneva Conventions (106)--criticized the Norwegian proposal on the basis that "rebels usually acted with full cognizance in advance of the risk they were running to incur penal sanctions." (107)
2. The Prosecution of Insurgents and the Preparatory Works of AP II
The idea to extend most of LOAC to NIACs (rather than merely a few core humanitarian principles)--and in particular the idea of according members of NSAGs combatant-like status--did not resurface during the 1974-77 Diplomatic Conference leading up to the adoption of the two Additional Protocols. (108) The matter did, however, come up indirectly in the context of drafting penal prosecution rules for the Second Additional Protocol to the Geneva Conventions.
Sweden indeed submitted a proposal according to which "[n]o prosecution [should] be carried out and no sentence [should] be passed only by reason of a person's taking part in hostilities covered by the present Protocol, except where the participation involved violations of the present Protocol." (109) According to Sweden, captured combatants "should be placed on a more equal footing with [POWs] in international conflicts." (110) Sweden considered it particularly disturbing that captured combatants remained subject to the death penalty, even in circumstances where, in an international conflict, they would fulfill the necessary conditions for enjoying POW status. (111) Yet there existed very little support for the Swedish proposal. Various primarily African and Asian countries insisted that they did not wish to curtail their ability to prosecute and punish insurgents. The Pakistani delegate, for instance, observed that "[i]n his country, insurgents would be executed, and any attempt to impose international legislation ... would ... constitute interference with the sovereign rights of States." (112)
Several more modest proposals were put forward, yet these too encountered strong opposition. According to one especially vague proposal, when prosecutions are against persons only charged with taking part in hostilities, the sentencing court should "take into consideration, to the greatest possible extent, the fact that the accused respected the provisions of [AP II]." (113) It was also suggested that captured prisoners in NLACs should not be subject to the threat of execution and that imprisonment should replace the death penalty. (114) Another proposal held that the death penalty should not be carried out against insurgents until the conflict had concluded, (115) which, according to the Holy See, would help to avoid "thousands of tragic and irreparable mistakes." (116) On a related note, the International Committee of the Red Cross stressed "capital punishment applied by one Party to the conflict inevitably led to capital punishment being applied by the other party thus causing an endless escalation of violence." (117) According to a final proposal, authorities in power at the end of conflict should endeavor to grant broad amnesty to those having participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict. (118)
Yet, each of the cited proposals met with a variety of objections. Some asserted that the proposed rules were unnecessary since national penal codes offered sufficient guarantees. (119) Others, that the proposed rules constituted interference in the internal systems of States. (120) Yet another group of critics argued that the indefinite postponement of executions for the duration of the conflict would both be impractical and amount to "moral torture." (121)
The only one of the aforementioned proposals that eventually found its way into AP II was the idea that States, at the close of hostilities, should endeavor to grant the broadest possible amnesty to persons who had participated in the armed conflict. Numerous States, such as Spain, were nonetheless quick to stress that this was a mere recommendation, not detracting from the discretionary power of the State concerned. (122) Other, more far-reaching proposals were rejected in order not to jeopardize broad support for the Protocol. Thus, Article 6 AP II does not contain a ban on the imposition of the death penalty, save vis-a-vis minors. Nor does it contain an obligation to suspend the carrying out of the death sentence, except with regard to pregnant women and mothers of young children. (123)
C. Ad Hoc Attempts to Bridge the Gap
While no recognition of belligerency has arguably taken place since 1945, there have been numerous ad hoc attempts to compensate for the lesser degree of protection offered by the law of non-international armed conflict. (124) These attempts have taken a wide variety of forms, with their binding character differing accordingly. (125) Thus, a substantial number of special agreements--as envisaged in Common Article 3--have been concluded between de jure governments and NSAGs. (126) In addition, both states and NSAGs have on numerous occasions subscribed to unilateral commitments, whether in the form of public declarations (which may at times serve partially or primarily as propaganda), communications addressed to the ICRC or U.N. organs, or the like. Sometimes, both parties simultaneously adopt independent but parallel commitments, with identical or similar content. Commitments can also be enshrined in instructions, codes of conduct, and internal regulations of the State or the NSAG. Apart from their form, the content of these unilateral or bilateral commitments also varies greatly. Some commitments are of a general nature. An example of this type is the Proclamation of Principles issued by the Free Syrian Army, which states among other things: "We will do our utmost to uphold international humanitarian law and norms, including by treating prisoners humanely, even as the Assad regime engages in crimes against humanity." (127) Other commitments are more specific: NSAGs may, for instance, commit to maintaining a proper physical separation between their armed forces and the civilian population or to refrain from recruiting children. (128) Many simply state the obvious and confirm rules that are in any case binding to the parties to the conflict, while some effectively extend the degree of protection offered by the law of non-international armed conflict.
A number of examples merit further consideration. First, on occasion, commitments have tended to recognize combatant privilege for members of NSAGs and to grant combatants taking part in a NIAC a degree of protection similar to that accorded to POWs (with rebels being interned for the duration of the conflict, rather than being imprisoned and prosecuted for mere participation in hostilities). Well-known examples of this nature are agreements concluded between the parties to the armed conflicts in Bosnia and Croatia in the early 1990s. The MOU relating to the conflict in Croatia, for example, provided inter alia that "[c]aptured combatants shall enjoy the treatment provided for by the Third Geneva Convention." (129) In a similar vein, the agreement relating to the conflict in Bosnia provided for the application of the Third Geneva Convention to captured combatants and for the ICRC's free access to captured combatants. (130)
Similar commitments have been brought about through parallel declarations and formal instructions to members of the armed forces. During the initial stages of the Algerian war of independence, France tried and executed captured fighters of the Front de Liberation nationale (FLN). Later, France issued orders to treat captured openly armed FLN fighters as POWs, even if not recognized as such. (131) In particular, FLN fighters were to be interned but not prosecuted (except, for instance, when having committed atrocities). The FLN for its part, on several occasions, insisted that it had granted captured French soldiers POW status stressing, however, that its willingness to do so was on condition of reciprocity on the part of France.
Reference can also be drawn to several other examples of unilateral declarations, instructions, and codes of conduct extending POW-like treatment to combatants of the adverse party in a N1AC. Such codes of conduct have on occasion been adopted by States, (132) as well as by NS AGs (such as the National Democratic Front of the Philippines, (133) the Kurdistan Workers' Party (PKK), (134) or, more recently, the Libyan Transitional National Council (135)). (136) The United Kingdom Manual of the Law of Armed Conflict states that, even if captured members of dissident fighting forces are not legally entitled to POW status and may be tried in accordance with domestic penal law, "[w]herever possible, treatment equivalent to that accorded to [POWs] should be given." (137) Finally, another interesting precedent is the 1982 Special Agreement between a number of Afghan opposition movements and the ICRC, in which the former agreed to apply, by analogy, the Third Geneva Convention, and in which the parties agreed to transfer and intern captured Soviet soldiers in a neutral country (applying Article III GC III by analogy). (138)
There are two other practices that are sometimes seen as a "functional equivalent of combatant immunity." (139) The first is the exchange or release of captured combatants. Indeed, on numerous occasions ad hoc agreements have been concluded between the de jure government and a NSAG providing for the exchange or release of captured combatants. In 1992, the various parties to the conflict in Bosnia-Herzegovina made an agreement providing for the unconditional release of prisoners not accused of, or sentenced for, grave breaches of LOAC. (140) Similar provisions have often been included in peace agreements concluded at the close of hostilities (e.g., in Uganda and Sierra Leone). (141) The release of captured combatants may also flow from a unilateral commitment. Thus, at the end of the Biafran War of secession, the Nigerian government released all captured combatants. (142) And in a declaration in 1995, the Ejercito de Liberation National (ELN) committed to handing over prisoners to the Red Cross after a short period of captivity. (143) The second practice is the granting of amnesty to members of NSAGs (at least in respect to their mere participation in hostilities). Such amnesty provisions have been included in a variety of peace agreements, including those made between the government of Sierra Leone, the Ivory Coast, and Indonesia, on the one hand, and the Revolutionary United Front (RUF), the Forces Nouvelles, and the Free Aceh Movement (GAM) respectively, on the other. (144)
In any case, in spite of the fact that they may contribute to greater compliance with LOAC, one must not ignore the fact that the aforementioned examples constitute ad hoc arrangements. In particular, whether such arrangements are introduced and what protection is granted depends entirely on the choice of the de jure government. Thus, numerous other examples of large-scale NIACs can be identified where no form of combatant privilege or POW-esque treatment, nor any form of amnesty, was granted, but where members of NSAGs were tried and punished for their participation in hostilities. Furthermore, while the release or exchange of captured combatants or the granting of a broad form of amnesty may contribute to national reconciliation and may, at times, provide useful leverage for the purpose of reaching a peace agreement, such measures cannot fulfill the same role as the granting of some form of combatant privilege for purposes of achieving better compliance with LOAC. Indeed, a rebel who knows that, upon capture by government forces, he risks being tried and executed for having participated in hostilities, may find little comfort in the uncertain prospect that he may one day be part of a prisoner exchange or benefit from a general pardon. Put differently: seeing as prisoner exchanges and general amnesties are often decided upon only at the close of hostilities, they hardly create a very strong incentive for rebels to comply with the laws of war during the conflict.
III. BACK TO THE DRAWING BOARD
A. A Delicate Balance
It is uncontested that under existing law a government engaged in a NIAC with a non-State armed group is free to imprison, try, and punish members of that group and is essentially free to impose the death penalty on its members (if provided for in domestic law), regardless of whether they have committed violations of the laws of war. At the same time, the risk of being sentenced to death or being subject to considerable prison sentences for merely participating in hostilities greatly reduces the incentive on the part of NSAGs to comply with the laws of war. Rebels who perceive victory as the only way to ensure their well-being may well be inclined to inflict upon captured troops of the de jure government the same fate they themselves may face. The result is an endless cycle of escalation, with endemic disregard for the laws of war on both sides (to the detriment of the civilian population and the combatants themselves), further impeding the achievement of a political solution.
In the course of the 1949 Diplomatic Conference, States genuinely considered the option of extending most of the Geneva Conventions (including the combatant privilege and POW treatment) to large-scale NIACs. Although the option was ultimately abandoned, the underlying idea has resurfaced on several occasions in subsequent decades. In 1970, U.N. Secretary-General U Thant suggested that "[ejfforts should be pursued towards gradual assimilation of [captured fighters and civilian detainees] to prisoners of war under Geneva Convention III and civilian detainees under Convention IV...." (145)
The excesses of the Syrian Civil War stand as proof that the time is ripe to revisit this idea.
At the same time, it is clear this requires a delicate balance, which must pay heed to the legitimate interests of States. On the one hand, the extension of combatant privilege clearly cannot be at the complete expense of State sovereignty and political stability. Accordingly, it would be absurd to suggest that any loose band of armed individuals with a plan to overthrow a de jure government should somehow be able to claim the combatant privilege and be able to commit attacks on police officers and military targets with utter impunity. A State must be able to maintain law and order and use domestic criminal law both to deter potential insurgents and to punish those who take up arms against it. Clearly, LOAC cannot serve as a tool to facilitate uprisings by individuals and non-State groups against de jure governments--even in the case of dictatorial regimes with poor human rights records and major legitimacy deficits. For this reason, States cannot be required to grant combatant-like status when faced with a low-intensity rebellion that can be confronted by deploying law enforcement personnel.
On the other hand, at the other extreme are situations of large-scale and prolonged civil war in which NSAGs control substantial parts of a State's territory and enjoy the support of a substantial portion of its population. In such scenarios, it may be in the interest of the State to grant the status of privileged combatant to members of the adverse Party. By so doing, the State may secure reciprocal treatment of its own forces upon capture. It may reduce the exposure of the civilian population to war crimes, inter alia, because the granting of combatant status may serve as an incentive for members of NSAGs to better distinguish themselves from the civilian population, in turn reducing the risk that innocent civilians will be caught in the middle of the conflict. This may, to a certain extent, alleviate the deep sense of hostility that sometimes renders it impossible to initiate a political dialogue between warring parties. Further, should the de jure government end up on the losing side of the conflict, prior lawful combatant treatment may reduce the risk of a remorseless persecution of members affiliated with the old regime.
True, accepting the adverse party as lawful combatants may have a downside for the de jure government. Apart from the much-feared political cost of giving some form of recognition to the NSAG--which may well be overestimated (146)--it removes the leverage that an amnesty proposal may offer in the context of peace negotiations (the government may have less to offer in return for rebel fighters to lay down their arms). In addition, it prevents the de jure government from using domestic criminal law to deter persons from joining the ranks of the NSAGs. These elements must nonetheless be put in perspective. Thus, one might think that the prospects of becoming a valid target for direct attack and, to a lesser extent, of being detained for the remainder of the armed conflict upon capture, still go some way in serving as a deterrent for candidate-fighters even though this deterrent will be less strong if both sides make no meaningful distinction between military objectives and the civilian population, and if maintaining one's status as a civilian holds little tangible benefit. Likewise, even if the de jure government can no longer use an amnesty offer as leverage in the context of peace talks, there may be other incentives to engage in dialogue with the NSAG (e.g., in the form of power-sharing arrangements).
One possible solution for reconciling conflicting interests is that a prohibition on prosecuting rebels for participation in a NIAC would apply only if several cumulative material conditions are met and if the prohibition's personnel scope is limited. More specifically, it could be argued that the de jure government should still be able to prosecute and punish those leaders that effectively control the NSAG, for example, those who have planned, prepared, and initiated the armed conflict. To some extent this can be construed as an analogy in national law to the criminalization of aggression as a leadership crime in international law. (147) Clearly, delineating the personnel scope of the envisaged prohibition poses greater difficulties than in the context of an international armed conflict, where the relevant political and military leaders may be easier to identify. Still, the option is worth considering since it enables the de jure government to preserve a tool for deterring insurgencies and to use an amnesty offer for leaders of the NSAG as additional leverage during peace talks, while nonetheless strengthening the compliance pull of LOAC vis-a-vis members of the NSAG. Another issue that merits consideration is whether foreign fighters (both mercenaries and individual volunteers) should also be excluded from the personnel scope. (148)
B. What Should Trigger the Doctrine's Application?
If it follows from the foregoing that the obligation to refrain from prosecuting and punishing members of NSAGs for mere participation in hostilities should apply only in full-scale civil wars and not in the context of mere rebellions, the question arises as to what objective criteria would trigger its application. To answer this question, inspiration can be found in the customary rules governing the doctrine of belligerency, the discussions on the matter during the 1949 Geneva Conference, and the case-law governing the scope of application of Common Article 3 and AP II.
By analogy to the criteria for belligerency, it could be argued, first, that a state of general hostilities is needed, which presupposes a certain intensity and duration; and, second, that the NSAGs should control a substantial part of the territory and should do so over a longer period of time (even if the precise scope of the territory controlled may evolve as hostilities continue). A state of general hostilities presupposes that hostilities continue for multiple months (and perhaps even years). (149) It could also be argued that the conflict should be general in scope, as opposed to localized, and that it should involve a large proportion of the population (arguably with several thousands of combatants on both sides). (150) Whether these two criteria are equal to, or more demanding than, the requirements of Article 1 AP II, depends on how the latter are interpreted. If the scope of AP II's application is construed broadly with the required intensity threshold being equal to that of Common Article 3 and the requirement of control being interpreted so that the territory does not have to be substantial nor the control stable, (151) then the bar must be set higher for present purposes. By contrast, if the scope of application of AP II is construed narrowly, the gap between the two sets of criteria (of intensity and territorial control) may well be minimal or even non-existent. (152)
A third and related requirement that surfaces in the context of the doctrine of belligerency is that the armed group ought to have a government or quasi-government in place. (153) This is arguably the main difference with the AP II threshold. (154) A similar approach was put forward by the United States during the 1949 Geneva Conference when it held that insurgents ought to have "an organization purporting to have the characteristics of the State" and that "the insurgent civil authority must exercise de facto authority over persons within a determinate territory." (155) Against this, however, one may question whether the latter criterion would not result in the requirements becoming so rigid that hardly any NIAC would ever meet the cumulative threshold, thus defeating the purpose of the exercise. (156) Furthermore, it must be recalled that the underlying rationale is not to incentivize the NSAGs to set up a civilian administration within the territory they control, but rather to improve compliance with LOAC. In light hereof, it may be preferable to construe the creation of a State-like civilian administration (with a proper police force, a government-like executive body, a judiciary, a taxation mechanism, etc.) as a positive indicator, rather than an indispensable ingredient. At the same time, the NSAGs would have to meet the organizational standard of AP II and would accordingly have to possess a clear command structure (with identifiable leaders mandated to speak on behalf of the group), with a strong logistical and operational capacity. (157)
A fourth, again related, criterion holds that armed groups should have an internal disciplinary system and the capacity to implement LOAC. This criterion constitutes one of the factual elements for recognition of belligerency and, more generally, forms part of the "organizational" standard for the application of LOAC to NIACs. A question that consistently arises--and also did in discussions about conditions for recognition of belligerency, (158) as well as during the 1949 Conference (159)--is whether the armed group must not only have the capacity to comply with LOAC, but should also do so in fact. If the text of Article 1 AP II suggests that what matters is the "capacity" to comply--a reading that is supported by the travaux preparatoires of AP II (160)--the question arises whether that bar should be raised for present purposes to "actual compliance" with LOAC. In order to tackle this chicken-or-egg conundrum and break the cycle of disregard for LOAC, it could be proposed as an alternative requirement that:
* The NSAG ought to make a formal declaration (161) to the ICRC confirming that it will comply with the LOAC; that it will include it in the internal codes of conduct or instructions; and that it will disseminate and enforce said rules vis-a-vis its members. (162)
* The NSAG ought to confirm specifically that captured combatants will be treated humanely and will not be executed (nor used as human shields). In addition, the ICRC should be allowed to visit captured combatants and, if it is unable to intern them, the NSAG ought to accept the transfer of captured combatants to a neutral, third-party State.
* The NSAG ought to confirm specifically that its members (a) will distinguish themselves from the civilian population by wearing a "fixed distinctive sign recognizable at a distance," (163) at least, "in all circumstances where concealment would directly jeopardize the lives or liberty of civilians," (164) and (b) will carry their arms openly during each military engagement and during such time as they are visible to the adversary while engaged in a military deployment preceding the launching of an attack in which they are to participate. (165)
If the Syrian Civil War exemplifies the necessity of according some form of combatant-like status to members of NSAGs under certain conditions, it also demonstrates the practical difficulties in applying the aforementioned criteria to a concrete NIAC. Thus, while the Free Syrian Army issued a declaration stating that it would respect LOAC and while at least some members have been receiving LOAC training courses with the support of NGOs, IGOs, and third States, (166) it is obvious that that statement at least partially served a propaganda purpose and that FSA fighters have committed numerous breaches of LOAC (as have government forces). In addition, the FSA has been described as fractious and deeply divided, with several divisions and affiliates operating more or less autonomously without reporting to FSA headquarters, and sometimes setting up their own quasi-judicial mechanisms.
In light thereof, it is not obvious that the FSA has the capacity to comply with LOAC or, more generally, that it has the required degree of "organization" for LOAC purposes. (167) On the other hand, it can be observed that various NS AGs arguably meet the organizational threshold. Moreover, several have effectively attempted to apply the requirements for the granting of POW status in international armed conflicts of Article 4(A)(2) GC II, or at least of Article 44 AP I, for instance, by obliging their members to wear uniforms. (168) In any case, the prospect of being recognized as a lawful combatant would arguably offer a powerful incentive to comply with those requirements. Furthermore, the situation in Syria suggests that when multiple NSAGs take part in a NIAC, it is conceivable that one or more may meet the aforementioned criteria, whereas others do not.
By analogy with Articles 1(4) and 96(3) AP I (on wars of national liberation), (169) some might argue in favor of an additional requirement, in that the NSAG should constitute the legitimate representative of a substantial part of the population of the State concerned. In this context, the FSA acts to a certain extent as the military wing of the Syrian Opposition Council, which, in turn, has been recognized in one form or another as the (or a) legitimate representative of the interests of the Syrian people by numerous States and organizations. (170) On the other hand, the acceptance of this additional criterion would again introduce a considerable degree of subjectivity in the discussion. It is not in the interest of the de jure government and serves no clear purpose, considering that the objective is to strengthen the compliance pull of LOAC in NLACs. Accordingly, it would seem preferable to stick to the aforementioned, more objective, requirements (including the requirement that the NIAC should involve a large proportion of the population). In a similar vein, suggestions that the motives of the NSAG should be taken into account must be dismissed. (171)
C. What Protection Should Be Accorded?
The next question that arises is what additional protection should be accorded in situations meeting the abovementioned criteria, and from what moment onwards. On the one hand, as the 1949 negotiations illustrate, applying the four Geneva Conventions in full measure is not an option. Many provisions--primarily those of the Fourth Geneva Convention relating to occupied territories, but also, for instance, those of the Third Geneva Convention on work pay for POWs--are simply impossible to apply to situations of civil war. Other provisions--including perhaps those on medical inspections of POWs (e.g., Art. 31 GC III, requiring monthly medical inspections)--may be too cumbersome, taking into account the realities of civil war and the logistical capacities of NSAGs as compared to regular armed forces. (172)
On the other hand, the more modest proposals that have been put forward in the past--chiefly the suspension of the death penalty for the duration of the armed conflict, the commitment to reduce punishment for captured members of NSAGs who have complied with LOAC or taken compliance with LOAC into consideration, or the commitment to consider granting broad amnesty after the end of the conflict (in accordance with Art. 6(5) AP II)--are not satisfactory. Each of these proposals is too vague and uncertain to create a strong incentive on the part of NSAGs to comply with LOAC. In each case, the risk of grave sentences being imposed on NSAGs (whether long prison sentences or even the death penalty) persists. (173)
Rather, the preferred option is to recognize that, when the conditions are met, members of NSAGs should not be prosecuted and punished for mere participation in hostilities but should instead be endowed with the combatant privilege. (174) Apart from this, members of NSAGs should not be treated as ordinary "criminals" and should accordingly be kept separate from such criminals. (175) As with POWs, rather than being imprisoned, they ought to be detained in internment camps for the duration of the conflict. Both sides ought to permit the ICRC to visit interned combatants. Should either or both be unable or unwilling to intern captured combatants, the parties ought to agree to the transfer and internment of such combatants in the territory of a neutral State (by analogy with Article 111 GC III), (176) as the Afghan mujahedeen did at one point during the Afghan war. (177) Further, rules can be envisaged to enforce or facilitate compliance with the foregoing by permitting the International Committee of the Red Cross (or other international or non-governmental organizations) to monitor trials of captured combatants (e.g., combatants suspected of having infringed LOAC or combatants falling outside the personal scope of the present proposal).
Another complex issue concerns the temporal application of the aforementioned protective regime. An argument can be made that it should apply as soon as the cited material conditions are met. From that moment onwards, the de jure government ought to transfer captured NS AG members to internment camps, including those already sentenced for participating in hostilities. (178) Conversely, it can be argued that when it becomes clear that the NSAG no longer meets the substantive criteria--either because government forces have gained the upper hand and what once was a full-scale civil war has become more akin to a rebellion, or because the NSAG consistently fails to distinguish from the civilian population or systematically executes captured government forces--the de jure government should be permitted to issue a declaration stating that it will no longer recognize the combatant privilege on the part of the NSAG. In such a case, those interned prior to the declaration would continue to benefit from combatant-like status, while newly captured fighters would not.
D. How to Introduce this New Regime?
A final question is how this new regime could be introduced. The starting point is that the ad hoc approach is not satisfactory in the long run and that it should no longer be left to the de jure government to voluntarily accept the activation (179) of this new regime to a particular NIAC by means of an express recognition of belligerency, an ad hoc agreement with the NSAG, or a unilateral declaration of some sort. Rather, this new regime ought to be enshrined in treaty law, whether through an amendment of Additional Protocol II (in the form of a separate chapter on full-scale civil war), or by the creation of a fourth Additional Protocol to the Geneva Conventions. Even if it is clear that several States will be reluctant to participate, it should not be an excuse for evading the issue.
As Michael Reisman has noted in this context, it may be better to have an effective and meaningful convention signed by a smaller group than to have a minimalist and even meaningless international convention signed by a large number of governments, especially when considering that a new treaty may gain momentum and may gradually attract further support over time. (180) Again, the suggestion made here is not entirely novel. In 1949 States made a genuine attempt toward this end, with Denmark stressing that "the question cannot be solved unless rules and conditions of this kind are embodied in the Convention." (181) In a similar vein, when advocating for a gradual assimilation of captured combatants in NIACs to POWs under GC III in 1970, U.N. Secretary-General U Thant suggested the drafting of rules to be transformed in due course into binding conventions or protocols ("distinct from, or in addition to, the conclusion of ad hoc agreements"). (182) LOAC has developed gradually over time, with new treaties responding to legal deficiencies and abuses evidenced by past armed conflicts. Major review of the treaty framework has taken place periodically, in the years 1899, 1907, 1929, 1949, and 1977. However, since the adoption of the 1977 Additional Protocols, no major review of LOAC has been undertaken, despite numerous armed conflicts that have occurred since then and have revealed the challenges that face the existing normative framework. (183) In light of these manifold challenges, a new review of the treaty framework cannot be postponed indefinitely. (184) When it arrives, the question concerning the status of NSAG members in a full-scale civil war should be addressed.
Given that a new treaty may not be forthcoming in the near future, several steps could be taken to move the evolution of current LOAC in the right direction. States can amend their national, criminal codes to exclude prosecution and punishment of members of an NSAG for mere participation in hostilities, or, in subsidiary order, to replace the death sentence by lighter sentences. (185) In addition, the ICRC could, on the basis of its past experience, draft model ad hoc agreements whereby an NSAG and a de jure government could mutually recognize that captured fighters are entitled to combatant-like treatment and provide for the internment, visit, transfer, and/or exchange of captured fighters. (186) Another useful option would be for the Geneva Call organization, an NGO initiative dedicated to engaging with NSAGs by making them subscribe to certain well-defined commitments and by subsequently monitoring compliance, (187) to set up a new Deed of Commitment inviting NSAGs to formally commit to distinguishing themselves from the civilian population and/or to refraining from executing captured government troops. (188)
Finally, in situations of full-scale civil war where the de jure government refuses to grant captured members of an NSAG combatant-like status, the U.N. Security Council (UNSC) could use its Chapter VII powers to impose on both parties the obligation to refrain from prosecuting and punishing, or at least from executing, (189) captured combatants and, possibly, to intern, rather than imprison, captured NSAG members. (190) A similar suggestion was entertained during the 1949 Conference. (191) If the suggestion was met with mixed reactions at the time, (192) it is clear that the understanding of the notion of a "threat to international peace and security" in the sense of Article 39 of the U.N. Charter has developed considerably since then, as have the tools used by the UNSC. Further, it is submitted that the Security Council possesses the required legal authority to impose such obligation (at least) in regard to the de jure government.
What if a new treaty eventually was to be agreed upon, yet discussion were to arise in a particular NIAC as to whether the substantive triggers are met? On several occasions it has been argued that in such setting a third party or institution should be called upon to cut the Gordian knot. Various proposals have been made in this context. Some have suggested deferring the matter to the International Court of Justice (ICJ) or to arbitration, others putting the question to the UNSC, or having the ICRC pronounce on the matter. While the foregoing options are preferable to leaving the question to the discretion of the de jure government, each has its disadvantages.
Recourse to ICJ or arbitration would appear too slow and cumbersome a process to provide a meaningful solution to the conundrum. Leaving the issue for the UNSC to solve would imply having a legal question answered by an essentially political body. For this reason, while the UNSC could by way of executive (rather than quasi-legislative or adjudicative) measure provisionally order the parties to a conflict to treat captured members of the opposite party as privileged combatants, the decision itself on whether or not the substantive triggers are met should not be left to the UNSC. Finally, turning to the ICRC for a verdict is inopportune, in that it risks jeopardizing the impartiality and neutrality of that institution and may in turn make it impossible for the ICRC to fulfill its vital tasks in the conflict concerned. The better option would be for a properly constituted Commission of Inquiry with qualified members (such as the Independent International Commission of Inquiry on the Syrian Arab Republic) to assess the matter, or to rely on the services of the existing International Humanitarian Fact-Finding Commission established on the basis of Article 90 AP I. (193) The latter options could also be followed in case the UNSC were to consider imposing a duty on the parties to grant combatant-like treatment or in case the de jure government were to indicate its intention to no longer recognize the combatant privilege on the part of the NSAG.
With a death toll well surpassing 100,000 men, women, and children (and mounting), the civil war in Syria confirms that non-international armed conflicts are brutal conflicts and are more often than not plagued by widespread disregard for the law of armed conflict. In recent years, various initiatives, such as the Geneva Call, have been set up to engage with NSAGs so as to improve compliance with LOAC. While such initiatives certainly merit praise, they cannot alter the underlying reality that LOAC structurally discriminates against NSAGs, notably by permitting the de jure government to punish captured members of NSAGs in accordance with domestic penal law--which may imply the imposition of the death penalty--even if the latter have committed no breach of LOAC whatsoever and even if the conflict has developed into a full-scale civil war. As long as this manifest inequality is not addressed, attempts to improve compliance with LOAC in NIACs are incomplete at best and futile at worst.
The central thesis of this Article is that LOAC must further evolve and that States must come to accept that, under well-defined conditions, non-State armed groups engaged in a NLAC against a de jure government must be granted combatant-like status without such recognition being conditioned on the ad hoc consent of the de jure government. One does not have to be so naive as to believe that such change will put an end to the commission of war crimes in non-international armed conflicts. Instead, one can recognize that it may well create a stronger incentive on the part of both the non-State group and the de jure government alike to respect the law of armed conflict and may set a new normative standard against which the international community can test and judge the conduct of both sides. Clearly, the foregoing requires a delicate balance between competing interests and raises a host of complex questions relating to the material and personal scope of such regime and its temporal application. Similar questions were raised and discussed as far back as the 1949 Geneva Conference. If they were ultimately left unanswered at that time, the excesses of recent conflicts, most recently in Syria, stand as proof that their complexity cannot serve as an excuse to evade the matter indefinitely.
(1) Theodor Meron, Remarks, Application of Humanitarian Law in Noninternational Armed Conflicts, 85 Am. SOC'Y INT'L L. 83, 83 (1991).
(2) Most law of armed conflict (LOAC) handbooks have long been devoted almost exclusively to the regulation of international armed conflict. For older treatises on the law of non-international armed conflict, see ERIK CASTREN, CIVIL WAR 244 (1966); Jean SIOTIS, LE DROIT DE LA GUERRE ET LES CONFLICTS ARMES D'UN CARACTERE NON-INTERNATIONAL 248 (1958).
(3) In the Tadic case, the International Criminal Tribunal for the former Yugoslavia famously held that an armed conflict exists whenever there is (1) "a resort to armed force between States," or (2) "protracted armed violence between governmental authorities and organized armed groups or between such groups within a State." Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, [paragraph] 70 (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995).
(4) The application of LOAC (or international humanitarian law) effectively hinges on the existence of an armed conflict. Such armed conflict can be either international or non-international. Note that a non-international armed conflict presupposes a certain intensity (protracted armed violence), which is not required for international armed conflicts. See supra note 3. Furthermore, a non-international armed conflict requires a degree of organization on the part of the non-State armed group(s) concerned. Such organization is, of course, presumed for armed forces of a State. In recent years, there has been considerable discussion on whether certain types of armed conflict qualify as non-international or international, as well as on the question of whether a separate category of transnational armed conflict has emerged or is beginning to emerge (a highly controversial position defended by the United States in the context of its "war on terror"). For an insightful overview, see Marko Milanovic & Vidan Hadzi-Vidanovic, A Taxonomy of Armed Conflict, in RESEARCH HANDBOOK ON INTERNATIONAL CONFLICT AND SECURITY LAW 256-314 (2013).
(5) By contrast, before 1977 international armed conflicts were already regulated extensively by a variety of multilateral treaties, chiefly the Fourth Hague Convention Respecting the Laws and Customs of War on Land and the "Regulations concerning the laws and customs of war on land" annexed thereto, as well as the four Geneva Conventions (GC) of 1949 dealing respectively with the wounded and sick armed forces in the field (GC 1), the wounded, sick, and shipwrecked armed forces at sea (GC II), prisoners of war (POWs) (GC III), and civilians (GC IV). If Geneva Conventions I-III built on preexisting conventions adopted prior to World War II, the Fourth Geneva Convention (the "Civilian" Convention) constituted a major novelty at the time. For a brief background and an overview of the protection offered by the so-called Geneva Law, see, for example, Tom Ruys & Christian De Cock, Protected Persons in International Armed Conflicts, in RESEARCH HANDBOOK ON INTERNATIONAL Conflict and Security Law 375-420 (2013).
(6) The adoption of two Additional Protocols to the Geneva Conventions in 1977, one dealing with international armed conflicts (AP I) and the other with non-international armed conflicts (AP II), was in part inspired by the events surrounding the Vietnam War. Again, it is worth noting that the norms introduced by AP II (twenty-eight provisions in total) remain relatively modest and underdeveloped in comparison to those set forth in AP I (102 articles in total). Moreover, it must be recalled that the scope of application of AP II is more limited than that of Common Article 3. In particular, AP II only covers protracted armed conflict between the armed forces of a State, on the one hand, and organized armed groups exercising control over part of its territory, on the other. By contrast, Common Article 3 also applies to protracted armed conflict between different organized non-State armed groups.
(7) Compare Customary Law Database, ICRC (May 20, 2014), http://www.icrc.org/customary-ihl/eng/docs/Home, with JEAN-MARIE HENCKAERTS & LOUISE DOSWALD-BECK, ICRC, 1 CUSTOMARY INTERNATIONAL HUMANITARIAN LAW: RULES 628 (2005), available at http://www.icrc.org/eng/assets/files/other/customary-international-humanitarian-law-i-icrc-eng.pdf.
(8) See, e.g., ANTHONY CULLEN, THE CONCEPT OF NON-INTERNATIONAL ARMED CONFLICT IN INTERNATIONAL HUMANITARIAN LAW 219 (2010); LINDSAY MOIR, THE LAW OF INTERNAL ARMED CONFLICT 306 (2002); SANDESH SIVAKUMARAN, THE LAW OF NON-INTERNATIONAL ARMED CONFLICT 657 (2012).
(9) See, e.g., John B. Bellinger III & Vijay VM. Padmanabhan, Detention Operations in Contemporary Conflicts: Four Challenges for the Geneva Conventions and Other Existing Law, 105 AM. SOC'Y INT'L L. 201, 201-43 (2011).
(10) See supra note 4.
(11) On the combatant privilege and the personal scope of application of the POW regime, see Ruys & De Cock, supra note 5, at 377-81, 384-88.
(12) See id. at 398-404. The Third Geneva Convention contains detailed provisions, for example, on the conditions of internment (regulating among other things medical treatment or forced labour).
(13) See, e.g., Dieter Fleck, The Law of Non-International Armed Conflict, in THE HANDBOOK OF INTERNATIONAL HUMANITARIAN LAW 581, 591-92, 604 (2013).
(14) Another label that is sometimes used is "armed opposition groups." The two notions are essentially interchangeable.
(15) Common Article 3 proclaims that the following acts shall remain prohibited at any time and in any place:
(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.
Geneva Convention Relative to the Treatment of Prisoners of War art. 3, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
(16) Article 6 AP II proclaims that:
(2) No sentence shall be passed and no penalty shall be executed on a person found guilty of an offence except pursuant to a conviction pronounced by a court offering the essential guarantees of independence and impartiality .... (4) The death penalty shall not be pronounced on persons who were under the age of eighteen years at the time of the offence and shall not be carried out on pregnant women or mothers of young children; (5) At the end of hostilities, the authorities in power shall endeavour to grant the broadest possible amnesty to persons who have participated in the armed conflict, or those deprived of their liberty for reasons related to the armed conflict, whether they are interned or detained.
Protocol Additional to the Geneva Conventions of 12 August 1949, and Relating to the Protection of Victims of Non-international Armed Conflict (Protocol II) art. 6, June 8, 1977, 1125 U.N.T.S. 609.
(17) Legality of the Threat or Use of Nuclear Weapons, Advisory Opinion, 1996 I.C.J. 226, [paragraph][paragraph] 24-25 (July 8).
(18) See, e.g., Second Protocol to the International Covenant on Civil and Political Rights, G.A. Res. 44/128, art. 2(1), U.N. Doc. A/RES/44/128 (Dec. 15, 1989) (aiming at the abolition of the death penalty: "[n]o reservation is admissible to the present Protocol, except for a reservation made at the time of ratification or accession that provides for the application of the death penalty in time of war pursuant to a conviction for a most serious crime of a military nature committed during wartime"); Protocol No. 6 to the European Convention for the Protection of Human Rights and Fundamental Freedoms Concerning the Abolition of the Death Penalty art. 2, Apr. 28, 1983, C.E.T.S. No. 114 ("A State may make provision in its law for the death penalty in respect of acts committed in time of war or of imminent threat of war; such penalty shall be applied only in the instances laid down in the law and in accordance with its provisions"). Note that the abolition of the death penalty laid down in the aforementioned treaty instruments is moreover only binding on States Parties. A substantial number of States indeed continue to apply the death penalty for certain crimes committed in peacetime.
(19) See Catrina Stewart, Syria Brings in Death Penalty for Opposition, INDEP., Dec. 21, 2011; Syria Signs Law imposing Death Penalty on Those Arming Terrorists, TELEGRAPH, Dec. 20, 2011.
(20) Syria's Assad Issues 'Counter-terror' Laws: SANA, GLOBAL TIMES, July 3, 2012. The new counterterrorism laws also provide for heavy prison sentences for those found guilty of financing or otherwise supporting terrorist groups, including, for instance, by "distributing written materials or information in other formats," Syria: Counterterrorism Court Used to Stifle Dissent, HUM. RTS. WATCH (June 25, 2013), http://www.hrw.org/news/2013/06/25/syria-counterterrorism-court-used-stifle-dissent (last visited Apr. 1, 2014) (emphasis added) (citing article 8).
(21) See U.N. Human Rights Council, Rep. of the lndep. Int'l Comm'n of Inquiry on the Syrian Arab Republic, [paragraph] 43, U.N. Doc. A/HCR/24/46 (Aug. 16, 2013) [hereinafter Commission of Inquiry].
(22) See, e.g., ICRC, IMPROVING COMPLIANCE WITH INTERNATIONAL HUMANITARIAN LAW, INTERNATIONAL HUMANITARIAN LAW BACKGROUND PAPER PREPARED FOR INFORMAL HIGH-LEVEL EXPERT MEETING ON CURRENT CHALLENGES TO INTERNATIONAL HUMANITARIAN LAW 4 (2004), available at http://www.icrc.org/eng/assets/files/other/improving_compliance_with_international_humanitarian_law.pdf; Anne-Marie La Rosa & Carolin Wuerzner, Armed Groups, Sanctions and the Implementation of International Humanitarian Law, 90 INT'L REV. RED CROSS 327, 335 (2008); SIVAKUMARAN, supra note 8, at 514; see also Marco Sassoli, Taking Armed Groups Seriously: Ways to Improve Their Compliance with International Humanitarian Law, 1 INT'L HUMANITARIAN LEGAL STUD. 5, 26 (2010).
(23) See Olivier Bangerter, Reasons Why Armed Groups Choose to Respect International Humanitarian Law or Not, 93 INT'L REV. RED CROSS 353, 377 (2011).
(24) 3 EMER DE VATTEL, LE DROIT DES GENS 242-44 (Emer De Vattel trans., 1758) (arguing that in civil wars, the rules governing the relations between the warring parties should be the same as in wars between States).
(25) See, e.g., INTERNATIONAL CRISIS GROUP, MIDDLE EAST REPORT NO. 143: SYRIA'S METASTASISING CONFLICTS (June 27, 2013).
(26) Laurie R. Blank & Geoffrey S. Com, Lasing the Forest for the Trees: Syria, Law, and the Pragmatics of Conflict Recognition, 46 VAND. J. TRANSNAT'L L. 693, 696-97 (2013).
(27) Syria: ICRC and Syrian Arab Red Crescent Maintain Aid Effort amid Increased Fighting, ICRC (July 17, 2012), http://www.icrc.org/eng/resources/documents/update/2012/syria-update-2012-07-17.htm. In a previous statement, the ICRC indicated that the situation had met the threshold of a NIAC in certain locations. See Some Syria Violence Amounts to Civil War: Red Cross, REUTERS, May 3, 2012.
(28) Commission of Inquiry, supra note 21, at 1.
(29) U.N. Secretary-General, Opening Remarks at Press Encounter (July 15, 2013), available at http ;//www.un.org/apps/news/infocus/sgspeeches/statments_full.asp?statlD=l 928#. UnoBbpOVEaU.
(30) See Stories from Syrian Refugees: Discovering the Human Faces of a Tragedy, UNHCR DATA PAGE, http://data.unhcr.org/syrianrefugees/syria.php (last visited Apr. 1, 2014).
(31) See Syria Crisis: Guide to Armed and Political Opposition, BBC NEWS, Oct. 17, 2013. The FSA Supreme Military Council itself has claimed to control some 900 military units totaling around 300,000 members. See Basma Atassi & Mohammed Haddad, Interactive: Mapping Syria's Rebellion, AL JAZEERA, July 19, 2013.
(32) See, e.g., Free Syrian Army Chief-of-staff Salim Idris, BBC NEWS, Feb. 17, 2014; Elizabeth O'Bagy, The Free Syrian Army, ISW MIDDLE EAST SECURITY REPORT 49, Mar. 9, 2013, available at http://www.understandingwar.org/sites/default/files/The-Free-Syrian-Army-24MAR.pdf.
(33) See, e.g., Syria Crisis: Guide to Armed and Political Opposition, BBC NEWS, Oct. 17, 2013; The Future of the Free Syrian Army, AL JAZEERA, Oct. 6, 2013.
(34) See, e.g., Syria Rebels Agree Azaz Ceasefire, BBC NEWS, Sept. 20, 2013; Syria Rebels Clash with Armed Kurds, AL JAZEERA, Nov. 19, 2012; Anne Barnard, Syria Rebels Turn Against Most Radical Group Tied to Al Qaeda, N.Y. TIMES, Jan. 12, 2014.
(35) See, e.g., Supreme Military Council of the Free Syrian Army, NAT'L COALITION OF SYRIAN REVOLUTION & OPPOSITION FORCES, http://www.etilaf.org/en/coalition-components/supreme-military-council-of-the-free- syrian-army.html; Syrian Coalition Fact-Sheet, NAT'L COALITION OF SYRIAN REVOLUTION & OPPOSITION FORCES, http://en.etilaf.org/about-us/fact-sheet.html; see also O'Bagy, supra note 32, at 25.
(36) For an overview of such recognitions (and an analysis of the precise wording and consequences), see Stefan A. G. Talmon, Recognition of Opposition Groups as the Legitimate Representative of a People, 12 CHINESE J. INT'L L. 219, 219-53 (2013).
(37) See, e.g., Key Syrian Rebels Reject National Coalition, AL JAZEERA, (Sept. 25, 2013), http://www.aljazeera.com/news/middleeast/2013/09/key-syrian-rebels-reject-national-coalition-201392512047715713.html.
(38) Commission of Inquiry, supra note 21, [apragraph] 23.
(39) E.g., Syria crisis: Both Sides Say Geneva Peace Talks Deadlocked, BBC NEWS (Feb. 14, 2014), http://www.bbc.com/news/world-middle-east-26197864.
(40) For an interesting thought exercise, see, for example, Dapo Akande, Would it Be Lawful for European (or other) States to Provide Arms to the Syrian Opposition?, EJIL: TALK! BLOG (Jan. 17, 2013), http://www.ejiltalk.org/would-it-be-Iawful-for-european-or-other-states-to-provide-arms-to-thesyrian- opposition/; see also Tom Ruys, Of Funding and 'Non-Lethal Assistance'--Third-State Intervention in the Syrian Civil War, 13 CHINESE J. INT'L L. 13 (2014).
(41) See, e.g., Robert Fisk, Iran to Send 4,000 Troops to Aid President Assad Forces in Syria, INDEP., June 16, 2013, at 16, available at http://www.independent.co.uk/news/world/middle-east/iranto-send-4000-troops- to-aid-president-assad-forces-in-syria-8660358.html; Henry Rome, Elite Hezbollah Fighters Are Spearheading Battle in Syria, IDF Commander Warns, JERUSALEM POST (Oct. 25, 2013), http://www.jpost.com/Middle-East/Elite-Hezbollah-fighters-are-spearheading-battle-in-Syria-IDF-commander- wams-329707; Michael Winter, Report: Saudis Sent Death-row Inmates to Fight Syria, USA TODAY (Jan. 21, 2013), http://www.usatoday.com/story/news/world/ 2013/01/21/saudi-inmates-fight-syria-commute-death-sentences/1852629/. It may also be observed that Israel has repeatedly carried out targeted strikes inside Syria. Commission of Inquiry, supra note 21, [paragraph] 22.
(42) It is no secret that the Assad regime has received military support from Russia and Iran, while Qatar and Saudi Arabia supply weapons to rebel groups. See, e.g., Who Is Supplying Weapons to the Warring Sides in Syria?, BBC NEWS (June 14, 2013), http://www.bbc.com/news/world-middle-east-22906965. Following the chemical weapons attack near Damascus on August 21, 2013, the United States Congress in turn approved the supply of weapons to anti-government forces. E.g., CIA Starts Arming Syrian Rebels Overtly, RT (Sept. 12, 2013), http://rt.com/usa/us-weapons-syrian-rebels-745/. Following heated debates among European Union Member States on a possible lifting of the arms embargo against Syria, the Council of the European Union in May 2013 opened the door to the possible supply of arms to anti-government forces subject to certain preconditions, while simultaneously asserting that "Member States will not proceed at this stage with the delivery of the equipment mentioned above." Press Release, Council Declaration on Syria, Brussels European Council Meeting 3421 (May 27, 2013).
(43) The United Kingdom, for instance, has provided rebel forces with "non-lethal" aid, which apparently includes not only food rations and medicines, but also body armor and armored vehicles to help opposition figures move around more freely. See, e.g., UK to Send Armoured Vehicles to Syrian Opposition, BBC NEWS (Mar. 6, 2013), http://www.bbc.com/news/uk-politics-21684105.
(44) Commission of Inquiry, supra note 21, [paragraph] 19.
(45) Id. [paragraph] 23.
(46) Id. [paragraph] 43.
(47) Id. [paragraph] 47. Note that both Article 3(1)(d) GC and Article 6 AP 11 implicitly suggest that NSAGs may conduct trials and pass sentences. Several NSAGs have effectively done so in the past, albeit such trials generally fail to meet minimum fair trial standards (as in the case of Syria). Apart from the practical difficulties involved (for example, NSAGs often lack the logistical capacities to conduct a proper trial), considerable debate exists, for instance, as to what must be understood by a "regularly constituted court" for purposes of an NSAG trial, what minimum fair trial standards apply, and what law the NSAG could or should apply. See, e.g., LIESBETH ZEGVELD, THE ACCOUNTABILITY OF OPPOSITION GROUPS IN INTERNATIONAL LAW 187-88 (2002); Sandesh Sivakumaran, Courts of Armed Opposition Groups. Fair Trials or Justice?, 7 J. INT'L CRIM. JUST. 489, 489-513 (2009); La Rosa & Wuerzner, supra note 22, at 337-40. As for the question concerning the applicable law, different options have been put forward, with some suggesting that NSAGs should apply the existing State law, and others pointing to international law or the NSAGs' own law (various NSAGs effectively adopt their own laws), or a combination of the foregoing. Admittedly, LOAC does not offer a clear solution to this problem, which the drafters of the GCs and AP II apparently failed to grasp. Each of the cited options presents major challenges (which have not been fully tackled in legal doctrine). In particular, accepting that NSAGs can enact their own laws within the territory they control could be seen as implying that such groups would, for instance, be free to introduce Sharia law to replace existing State law, or that they could themselves introduce rules imposing grave penalties, and even the death penalty, on captured government forces "found guilty" of mere participation in hostilities.
(48) U.N. Human Rights Council, Rep. of the Indep. Int'l Comm'n of Inquiry on the Syrian Arab Republic, U.N. Doc. A/HRC/23/58, [paragraph][paragraph] 59-60, (June 4, 2013).
(49) Commission of Inquiry, supra note 21, [paragraph][paragraph] 49-50.
(50) See sources cited supra note 22.
(51) See Bangerter, supra note 23.
(52) Id. at 377.
(53) See, eg., MOIR, supra note 8, at 4; Sasha Radin, Armed Conflict and International Law: in Search of the Human Face, in THE CURRENT RELEVANCE OF THE RECOGNITION OF BELLIGERENCY 115, 119-52 (Marielle Matthee et al. eds., 2013).
(54) HERSCH LAUTERPACHT, RECOGNITION IN INTERNATIONAL LAW 271 (1947).
(55) Radin, supra note 53, at 121.
(56) SIVAKUMARAN, supra note 8, at 15.
(58) Id.; see also MOIR, supra note 8, at 8.
(59) See, e.g., MOIR, supra note 8, at 13-14; Radin, supra note 53, at 123; SIVAKUMARAN, supra note 8, at 11.
(60) See, e.g., CASTREN, supra note 2, at 138.
(61) E.g., MOIR, supra note 8, at 9; Radin, supra note 53, at 128; SIVAKUMARAN, supra note 8, at 12; see also Final Record of the Diplomatic Conference of Geneva of 1949, Apr. 26, 1949, Geneva, Switz., Consideration of Article 2 (Vol. II), [section] 2(b), at 12 (U.S.) [hereinafter Final Record IIB], available at http://www.loc.gov/rr/frd/MiIitary_Law/pdf/Dipl-Conf-1949-Final_Vol-2-B.pdf (stressing that "premature recognition of the belligerency of insurgents was a tortious act against the lawful government and a breach of international law").
(62) See CASTREN, supra note 2, at 140, 174-75.
(63) Thus, in the Prize Cases, the U.S. Supreme Court found that "[t]he proclamation of blockade is itself official and conclusive evidence ... that a state of war [exists]." Brig Amy Warwick, 67 U.S. 635, 636 (1862).
(64) See, e g., Radin, supra note 53, at 127-28.
(65) See the overview of "instances of recognition" in SIVAKUMARAN, supra note 8, at 17-20.
(66) TURKEL COMM'N, PUBLIC COMMISSION TO EXAMINE THE MARITIME INCIDENT OF 31 MAY 2010, REPORT part I, at 49 n.147 (Jan. 2010), available at http://www.turkel-committee.gov.il/ files/wordocs/8808report-eng.pdf.
(67) SIVAKUMARAN, supra note 8, at 19.
(68) There is a helpful overview of the drafting history of Common Article 3 in MOIR, supra note 8, at 23-29.
(69) The 1949 Conference constituted an effort to develop the LOAC framework in reaction to the events of the World War II.
(70) Final Record IIB, supra note 61, at 47 (draft GC I), 61 (draft GC II), 73 (draft GC III), 113 (draft GC IV).
(71) Id. at 73, 113.
(72) According to the USSR, "[n]o other issue ha[d] given rise to such a long discussion and to such a detailed and exhaustive study." Final Record IIB, supra note 61, at 325 (USSR).
(73) The Joint Committee was tasked with the examination of the articles common to the different (draft) Conventions. See id. at 9-15, 34-37; see also Report Drawn up by the Joint Committee and Presented to the Plenary Assembly, id. at 128-29.
(74) The Special Committee was set up by the Joint Committee with a view to solving the difficulties raised by Article 2(4) of the Stockholm draft. See id. at 40-102. A particularly useful overview of the negotiations within the Special Committee and the drafts and amendments submitted can be found in the Seventh Report of the Special Committee. Id. at 120-27.
(75) Id. at 10 (U.K.), 15, 327 (Burma).
(76) Id at 98-99 (Fr.), 121.
(77) Final Record IIB, supra note 61, at 12, 42 (U.S.).
(78) Id. at 10-11 (Greece). But see id. at 11 (Hung.).
(79) Id. at 11; see also id. at 10 (Fr.) (noting that "the forces concerned must be organized military forces belonging to a responsible authority capable of respecting, or enforcing respect for the Convention, in a given territory"); id. at 43 (Fr). Note that the French position gradually shifted throughout the debates. At a later meeting, France stated--rather bluntly--that "[C]ivil war was a political and not a legal concept.... The Conference was not competent to define civil war, nor to confer competency on a body of a political character. It was necessary to allow the normal play of international politics." Id. at 45.
(80) Id. at 12, 46-47 (U.S.).
(81) Id. at 13 (Can.), 12 (China).
(82) Final Record 118, supra note 61, Annexes A, B, at 124-25. At the same time, some objected that the phrase "[presenting] the characteristics of a State" created the impression that the rebels already constituted a subject in international law and that rebels should not only agree to be bound by the provisions of the Convention, but should in fact observe the provisions. Id. at 46, 47 (It.) (emphasis added).
(83) Id. at 15 (Austl.); see also id. at 13 (Can.) ("[T]he test should be: recognition of belligerency of the rebels by the lawful Government.") At the same time, Canada expressed support for the U.S. proposal implicitly conceding that recognition by the de jure Government was not an absolute requirement. But see, e.g., id. at 14 (USSR), 42 (U.S.).
(84) Compare Final Record IIB, supra note 61, at 11 (Greece), 44 (Austl.), with id. at 14 (USSR), 42, 45 (U.S.), 45 (Fr.).
(85) Compare id. at 45, 78 (Nor.), 45, 46 (U.S.), with id. at 79 (USSR).
(86) Id. at 122 (U.K.. amend.).
(87) Id. at 13 (Can.), 76 (Chairman), 47 (Fr.), 334 (Switz.); id. at 10, 41, 49 (U. K.). It was also argued that provisions of other Conventions, such as the provisions on army pay for POWs, could not be applied in the context of a NIAC. Id. at 99 (Den.). But see id. at 326 (USSR) (arguing that the impossibility of applying certain provisions to NIACs was used as a "pretext" to deny the possibility of applying several provisions of the four Conventions which could very well be applied to all cases of conflict, international or not).
(88) Id. at 41 (U.K.).
(89) Id. at 77, 125. For the other three Conventions, the Working Party kept the previous draft, based on the cited U.S. proposal.
(90) Id. at 122.
(92) 7th Report Special Committee, id. at 123. It is worth noting that the 1CRC itself supported the idea of applying only a humanitarian core to NIACs, since "the rigid conditions laid down in the Working Party's [proposal] would result in interminable discussions between the Parties to the conflict, before it were decided that the Conventions could be applied." Final Record 11B, supra note 61, at 79.
(93) Id. at 78, 93 (Fr.); id. at 43 (It.); id. at 14 (Monaco); and id at 11 (Nor.).
(94) See Common Article 3, supra note 15.
(95) Final Record I IB, supra note 61, at 83.
(96) Id. at 331-32 (Den.) (criticizing the sub-Committee for evading the question put before it by "simply recognizing humanitarian obligations and duties only to the Parties to the conflict."); see also Mex., id. at 334 (noting the need for a more expansive scope of application for the Convention and its articles).
(97) Id. at 98.
(98) Id. at 335.
(99) Id. at 94 (Greece), 79 (Monaco). Legal doctrine is in agreement that NSAGs are effectively bound by the law of non-international armed conflict, although diverging legal arguments have been presented to explain this binding character. See, e.g., Antonio A. Cassese, The Status of Rebels Under the 1977 Geneva Protocol on Non-International Armed Conflicts, 30 INT'L & COMP. L.Q. 416, 416-39 (1981) (arguing that one cannot really grasp the meaning of the II Additional Protocol of the Geneva Conventions without placing it in the context of general non-international law); Sassoli, supra note 22, at 10-14; Sandesh Sivakumaran, Binding Armed Opposition Groups, 55 INT'L & COMP. L.Q. 369, 369-94 (2006) (positing that groups fighting in internal armed conflicts are bound by the rules of international humanitarian law, and offering various theories why this is the case).
(100) Final Record UB, supra note 61, at 12, 42.
(101) Id. at 42 (U.K.).
(102) Id. at 44.
(103) Id. at 49, 50 (U.S.).
(104) Id. at 84.
(105) Id. at 49.
(106) See, e.g., id. at 123, 329.
(107) Id. at 50.
(108) This is true with the exception of some half-hearted suggestions. See Official Records of the Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts, Geneva, 1947-1977, Library of Congress Vol. V, at 91 (Nor.), 187 (Bangl.) (Apr. 4, 2014) [hereinafter Official Record], available at http://www.loc.gov/rr/ frd/Military_Law/RC-dipl-conference-records.html; id., Vol. VIII, at 359 (Nor.). But see, e.g., id., Vol VIII, at 293 (Burundi).
(109) Official Record, supra note 108, Vol. IV, at 35.
(110) Id., Vol. VIII, at 359.
(111) Id., Vol. V, at 142; id., Vol. VIII, at 360.
(112) Official Record, supra note 108, Vol. VIII, at 360; see also, id., Vol. VIII, at 363 (Iran) ("Iranian law was very severe in its attitude towards anyone who sought to overthrow the legal Government by force or who advocated such action."); id., Vol. XI, at 343 (Nigeria) ("Yet, punitive measures were justified where a Government punished insurgents: a rebel was a criminal, and there could be no question of protecting criminals. Consequently, his delegation could not subscribe to a principle which encroached on the sovereignty of States and jeopardized their survival.").
(113) Official Record, supra note 108, Vol. VIII, at 358 (ICRC); id., Vol. X, at 132, 145, 148; see also id., Vol. VIII, at 362 (Spain) (arguing that the words 'to the greatest extent' ought to be deleted, while stressing that it was "only natural" that, when faced with prosecution, combatants who had complied with the provisions of AP II should be given the consideration referred to).
(114) Official Record, supra note 108, Vol. IV, at 34 (Swed.); id., Vol. V, at 142 (Swed.).
(115) Official Record, supra note 108, Vol. IV, at 34 (Can.); id., Vol. VII, at 92 (Switz.); id., Vol. VII, at 96 (Nor., Holy See), 99 (Holy See); id., Vol. VIII, at 359 (Braz.); id., Vol. IX, at 302 (Can.), 318 (Swed.), 333 (Swed.); id., Vol. X, at 132, 144. But see id., Vol. V, at 142 (Swed.) (finding this unsatisfactory).
(116) Official Record, supra note 108, Vol. VII, at 99 (Holy See); see also id., Vol. VII, at 96 (Holy See).
(117) Official Record, supra note 108, Vol. VIII, at 357-58 (ICRC).
(118) Id., Vol. IV, at 34 (Can.); id., Vol. X, at 133, 144. But see id., Vol. V, at 142 (Swed.) (finding this unsatisfactory).
(119) Official Record, supra note 108, Vol. VII, at 92 (Pak), 93 (Nigeria), 101 (Kenya), 103 (Saudi Arabia).
(120) Id., Vol. VII, at 102 (Nigeria); id., Vol. VIII, at 360 (Pak.), 362 (Spain) (arguing, for example, that the granting of amnesty was the prerogative of domestic law and had no place in AP II), 363 (Mong.).
(121) Official Record, supra note 108, Vol. VIII, at 361 (Arg.), 364 (Pol.).
(122) Id., Vol. VII, at 94 (Can.), 102 (Nigeria), 103 (Spain) ("Such measures fall within the exclusive competence of States, which, bearing always in mind the common good of the community they govern, can alone decide whether or not an amnesty is conducive to the restoration of public peace."), 105 (Zaire).
(123) See Article 6 AP II, supra note 16.
(124) For a very instructive and in-depth overview, see SIVAKUMARAN, supra note 8, at 20-29, 107-52; see also Cedric Ryngaert & Anneleen Van de Meulebroecke, Enhancing and Enforcing Compliance with International Humanitarian Law by Non-State Armed Groups: An Inquiry into Some Mechanisms, 16 J. CONFLICT AND SEC. L, 446-86 (2012); Increasing Respect for International Humanitarian Law in Non-International Armed Conflict, 1CRC 32 (Feb. 2008), http://www.icrc.org/eng/assets/files/other/icrc_002_0923.pdf.
(125) On the binding character of special agreements, see, for example, Prosecutor v. Tadic, Case No. IT-94-1, Decision on Defence Motion for Interlocutory Appeal on Jurisdiction, [paragraph] 143, (Int'l Crim. Trib. for the Former Yugoslavia Oct. 2, 1995); see also, for example, Ezequiel Heffes & Marcos D. Kotlik, Special Agreements Concluded by Armed Opposition Groups: Where Is the Law?, EJIL: TALK! BLOG (Feb. 27, 2014), http://www.ejiltalk.org/special-agreements-concluded-by-armed-opposition-groups-where-is-the- law/.
(126) Relevant commitments can also be enshrined in ceasefire or peace agreements. See, e.g., Agreement on Cessation of Hostilities Between the Government of the Republic of South Sudan (GRSS) and the Sudan People's Liberation Movement/Army (in opposition) (SPLM/A in opposition), INTERGOVERNMENTAL AUTHORITY ON DEVELOPMENT (2014), http://igadhost.com/ public_docs/South_Sudan_CoH_Signed.pdf; see also R. Bartels, Temporal Scope of Application of IHL: When Do Non-international Armed Conflicts End? Part 1, OPINIO JURIS (Feb. 18 2014), http://opiniojuris.org/2014/02/18/guest-post-bartels-temporal-scope-application-ihl-non-international-armed-conflicts- end-part-1/.
(127) The Proclamation of Principles is available via the website of the Syrian Opposition Council, at http://www.etilaf.org/en/about-us/fact-sheet.html; see also Proclamation of Principles, FREE SYRIAN ARMY (Apr. 4, 2014), http://www.irinnews.org/pdf/fsa_proclimation_of_principles.pdf.
(128) See, e.g., Statement by the Opposition Movements, JUSTICE AND EQUALITY MOVEMENT AND SUDAN LIBERATION MOVEMENT-UNITY (2008), http://www.intemal-displacement.org/ 8025708F004BE3Bl/(httpInfoFiles)/01A4lD0ABDCDEB8BC12578BD0051 AE9E/$file/jem-slm-unity-11-july-2008.pdf.
(129) Memorandum of Understanding on the Application of IHL Between Croatia and the Socialist Federal Republic of Yugoslavia, Geneva (Nov. 27, 1991), as reprinted in 3 MARCO SASSOLI, ANTOINE BOUVIER & ANNE QUINTIN, HOW DOES LAW PROTECT IN WAR? 1713 (2011).
(130) Agreement on the Application of IHL Between the Parties to the Conflict in Bosnia and Herzegovina (May 22, 1992), as reprinted in SASSOLI, supra note 129, at 1717. The agreement also stresses that combatants are obliged to distinguish themselves from the civilian population.
(131) See SIVAKUMARAN, supra note 8, at 119, 516-17, 523-24.
(132) For example, codes of conduct have been adopted by the Nigerian Government in the Biafran war of secession. See FED. GOV'T OF NIGERIA, OPERATIONAL CODE OF CONDUCT FOR NIGERIAN ARMED FORCES (1967), available at http://www.icrc.org/applic/ihl/ihl-nat.nsf/ xsp/.ibmmodres/domino/OpenAttachment/applic/ihl/ihi-nat.nsf/2C45266438DFlFCD412565B80048 D804/TEXT/OPERAT10NAL%20CODE%200F%20CONDUCT%20FOR%20NIGERIAN%20ARM ED%20FORCES.pdf ("Soldiers who surrender will not be killed. They are to be disarmed and treated as prisoners of war").
(133) See NDFP Declaration of Undertaking to Apply the Geneva Conventions of 1949 and Protocol I of 1977, NAT'L. DEMOCRATIC FRONT OF THE PHILIPPINES 13(1996), available at http://www.ndfpmc.com/gob/sites/default/files/publications/Booklet%206.pdf ("The NDFP will treat any captured personnel of the military, police and paramilitary forces of the GRP as prisoners of war and demands that the GRP likewise treat as prisoners of war any captured personnel of the NPA and other forces represented herein by the NDFP.").
(134) PKK Statement to the United Nations at a Press Conference in Geneva (Jan. 24, 1995), http://www.hartford-hwp.com/archives/51/009.html. In the Statement, the PKK declares among other things that:
(3) The PKK will treat captured members of the Turkish security forces as [POWs]. (4) The PKK will disseminate this statement and the rules of [the GCs and AP 1] to its forces and asks for the assistance of the ICRC. It has adopted a system of discipline to ensure respect for these rules and the punishment of those who break them. It accepts the principle of command responsibility. (5) The PKK calls upon the Turkish government to give the same undertaking and to accept an offer for services from the ICRC.
(135) TRANS NAT'L COUNCIL, THE TREATMENT OF DETAINEES AND PRISONERS (Mar. 25, 2011), available at http://www.libyauprisingarchive.com/a-vision-of-a-democratic-libya-tnc-armouncements. html ("The TNC would like to reiterate that its policies strictly adhere to the 'Geneva Convention relative to the treatment of Prisoners of War.'").
(136) For other examples, see Sivakumaran, Lessons for the Law of Armed Conflict from Commitments of Armed Groups: Identification of Legitimate Targets and Prisoners of War, 93 INT'L REV. RED CROSS 463, 478-81 (2011) (referring to statements and/or practices of the Biafran authorities during the attempted secession from Nigeria, of Eritrean rebel groups during the secession from Ethiopia, and of the FMLN in El Salvador).
(137) UK MINISTRY OF DEFENCE, THE MANUAL OF THE LAW OF ARMED CONFLICT, [section] 15.6.3 (2004).
(138) See Report of the Special Rapporteur on the Situation of Human Rights in Afghanistan, [section][section] 104, 163, UN Doc. E/CN.4/1985/21 (Feb. 19, 1985). Note that according to the report, both sides to the conflict routinely executed captured combatants. Id. [section][section] 102-04. After the conclusion of the Special Agreement with the 1CRC, the Afghan resistance movements apparently endeavoured to some extent to ensure that foreign prisoners were not tortured or executed. Article 111 GC 111 deals with the internment of prisoners of war in neutral territory in cases of international armed conflict: "The Detaining Power, the Power on which the prisoners of war depend, and a neutral power agreed upon by these two Powers, shall endeavour to conclude agreements which will enable prisoners of war to be interned in the territory of the said neutral Power until the close of hostilities."
(139) For an example, see SIVAKUMARAN, supra note 8, at 520.
(140) Agreement Between the Parties to the Conflict in Bosnia and Herzegovina on the Release and Transfer of Prisoners (Oct. 1, 1992), reprinted in SIVAKUMARAN, supra note 8, at 517.
(141) See id. at 517; supra notes 32-34.
(142) See SIVAKUMARAN, supra note 8, at 517.
(143) El Ejercito de Liberacion Nactional y el Derecho Humanitario, Public Declaration of Comandante Manuel Perez (July 15, 1995), available at http://cedema.org/ver.php?id=3391.
(144) See SIVAKUMARAN, supra note 8, at 520; supra notes 48-51.
(145) U.N. Secretary-General, Respect for Human Rights in Armed Conflicts, [section] 156, U.N. Doc. A/8052 (Sep. 18, 1970).
(146) In this sense, see Bangerter, supra note 23, at 378 n.99 (noting that agreements concluded between the Philippine and Sudanese governments and their NSAG adversaries have not brought about some magic change of status that would confer legitimacy on the armed group).
(147) Cf. R.C. Res. 6, Assembly of States Parties to the Rome Statute of the International Criminal Court at Kampala, 13th Plenary Meeting (June 11, 2010).
(148) This would certainly be relevant in a case such as the Syrian Civil War, where numerous volunteers from third party countries have traveled to the conflict zone to take part in hostilities. See, e.g., Hundreds of Britons fighting in Syria--MI5 Chief, BBC NEWS (Nov. 7, 2013), available at http://www.bbc.com/news/world-middle-east-24856553.
(149) It may be recalled that the United Kingdom hinted at a minimum of six months in the context of the 1949 Geneva Conference. See Final Record IIB, supra note 61, at 122 (U.K. amend.).
(150) Lindsay Moir, The Historical Development of the Application of Humanitarian Law in Non-international Armed Conflicts to 1949, 47 INT'L & COMP. L.Q. 337, 346 (1998).
(151) Cf. COMMENTAIRE DES PROTOCOLES ADDITIONNELS [section][section] 4464-65 (Yves Sandoz, Christophe Swinzrski & Bruno Zimmerman eds., 1986); Prosecutor v. Akayesu, Case No. ICTR-96-4-T, Judgment, [section] 626 (Sept. 2, 1998).
(152) See Radin, supra note 53, at 130-37 (comparing the standards for recognition of belligerency to those of Common Article 3 and AP II). Radin finds that the AP II conditions of territorial control and intensity are similar to those of the recognition of belligerency. Id.
(153) See SIVAKUMARAN, supra note 8, at 12.
(154) See Radin, supra note 53, at 136.
(155) Final Record IIB, supra note 61, at 12 (U.S.); see also id. at 46-47.
(156) Cf. Final Record IIB, supra note 61, at 79.
(157) See the indicia identified by the ICTY in Boskoski and other cases. Prosecutor v. Boskoski, Case No. IT-04-82-T, Judgment, [section][section] 194-206 (July 10, 2008).
(158) See, e.g., SIVAKUMARAN, supra note 8, at 12. But see Radin, supra note 53, at 136 (suggesting that the capacity to comply is sufficient for AP II purposes, while recognition of belligerence presupposes actual compliance).
(159) E.g., Final Record IIB, supra note 61, at 46 (It.), 47 (It.).
(160) See SIVAKUMARAN, supra note 8, at 189.
(161) The idea of having the NSAG make a formal declaration to comply with LOAC was also entertained by the United States during the 1949 Conference. Final Record IIB, supra note 61, at 46.
(162) Consider in this context La Rosa & Wuerzner, supra note 22, at 331-32.
(163) Cf. Geneva Convention Relative to the Treatment of Prisoners of War art. 4(A)(2), Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 135.
(164) Cf. U.N. Secretary-General, Respect for Human Rights in Armed Conflicts, [section] 177, U.N. Doc. A/8052 (Sep. 18, 1970).
(165) Cf. 1977 Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) art. 44(3), June 8, 1977, 1125 U.N.T.S. 3.
(166) See Raja Abdulrahim, Legal Experts Teach Syrian Rebels to Prevent Human Rights Abuses, L.A. TIMES (Oct. 18, 2013), available at http://www.latimes.com/world/Ia-fg-syria-law-training- 20131018,0,1728088.story#axzz2vFZVqISE; see also Sometimes You Cannot Apply the Rules--Syrian Rebels and IHL, 1R1N NEWS (May 13, 2013), http://www.irinnews.org/fr/report/98021/sometimes-you-cannot-apply-the-rules- syrian-rebels-and-ihl.
(167) For an interesting analysis, see Rogier Bartels, The Organisational Requirement for the Threshold of Non-international Armed Conflict Applied to the Syrian Opposition, ARMED GROUPS & INT'L L. BLOG (Aug. 9, 2012), http://armedgroups-internationallaw.org/2012/08/09/the-organisational-requirement-for- the-threshold-of-non-mtemational-armed-conflict-applied-to-the-syrian-opposition (finding that "[s]everal of the [Boskoski] factors and indicators appear to be in place, but others are seemingly (still) lacking"). Bartels nonetheless concludes that the organizational requirement is met. Id.
(168) See SIVAKUMARAN, supra note 8, at 519.
(169) Article 1 (4) AP I broadens the notion of "international armed conflict" (for the purposes of AP I) to armed conflicts "in which peoples are fighting against colonial domination and alien occupation and against racist regimes in the exercise of their right of self-determination." In either of the aforementioned scenarios, the provisions of AP I can be triggered pursuant to a unilateral declaration to be submitted, in accordance with Article 96(3) AP I, by "the authority representing [the] people" concerned.
(170) See Talmon, supra note 36.
(171) Note that in the Limaj case, the ICTY stressed that for purposes of determining the existence of a NIAC, "the purpose of the armed forces to engage in acts of violence or also achieve some further objective is ... irrelevant." Prosecutor v. Limaj, Case No. IT-03-66-T, Trial Chamber II, [section] 170 (Nov. 30, 2005); see Sylvain Vite, Typology of Armed Conflicts in International Humanitarian Law: Legal Concepts and Actual Situations, 91 INT'L REV. RED CROSS 69, 78 (2009) (stressing that this criterion has no legal basis, and is not desirable in LOAC); see also Marco Sassoli, supra note 22, at 14-15 (arguing in favour of an inclusive approach).
(172) As Sassoli points out, several rules that form part of the law of non-international armed conflict--whether treaty rules (Common Article 3 GC and AP 11) or customary rules (compare the numerous customary rules identified as applying to international and non-international armed conflicts alike in the ICRC Customary Study)--have been identified from a State-centered perspective, without regard to the question of how NSAGs are supposed to apply these rules in practice. Sassoli, supra note 22, at 15. Moreover, the rules of the Geneva Conventions have been drafted purely from a State perspective. Making these rules binding on NSAGs may often pose substantial, if not insurmountable, practical problems.
(173) Alternative suggestions that partially remove this uncertainty and come close to the actual granting of "combatant privilege" concern the prior introduction of a "mandatory amnesty" for acts of mere participation in hostilities, or the prior announcement of a reduction of punishment in case of compliance with LOAC. See ICRC, supra note 22, at 5.
(174) This is provided that they comply with LOAC and properly distinguish themselves from the civilian population. Cf. discussion supra Subpart 3(b)(ii)(c).
(175) See SIVAKUMARAN, supra note 8, at 518-19.
(176) See Article 111 GC III, supra note 138.
(178) Those sentences would accordingly have to be annulled or reviewed by means of an appeal mechanism.
(179) Although it may be necessary to accept that the de jure government can make a declaration terminating this regime when the substantive triggers for the protective regimes are manifestly no longer met (see above).
(180) See W. Michael Reisman, Remarks, 85 PROC. AM. SOC'Y INT'L L. 85, 89-90 (1991) (criticizing the outcome of the 1974-77 Diplomatic Conference).
(181) Final Record IIB, supra note 61, at 331-32.
(182) See U.N. Secretary-General, Respect for Human Rights in Armed Conflicts, supra note 145, [section][section] 156, 163-64.
(183) This is of course not to deny that important developments have taken place since 1977, such as the evolution of international criminal law or the adoption of new treaty instruments regulating the use of specific means of warfare. Examples include the 1997 Ottawa Convention on anti-personnel mines and the 2008 Oslo Convention on cluster ammunition.
(184) Such treaty review could also serve as a useful and historic opportunity to involve NSAGs in the development of LOAC. For more on this, see Sassoli, supra note 22, at 20.
(185) This reflects the suggestion made by the United Kingdom during the 1949 Conference. Final Record IIB, supra note 61, at 49. Olivier Bangerter cites the Swiss Criminal Code as "one of those all too rare texts with such a dual approach." Bangerter, supra note 23, at 377. He notes that while it criminalizes the financing of terrorism by imposing a fine or a prison sentence of up to five years, it states that raising such funds cannot be punished if the financing is intended to support acts that do not violate the rules of LOAC. Id.
(186) Cf. U.N. Secretary-General, Respect for Human Rights in Armed Conflicts, supra note 145, [section] 51.
(187) See GENEVA CALL, http://www.genevacaII.org/about/about.htm (last visited May 12, 2014).
(188) Geneva Call has previously launched three Deeds of Commitment, inviting NSAGs to subscribe to specific commitments. These are the Deed of Commitment for Adherence to a Total Ban on Anti-personnel Mines and for Cooperation in Mine Action; the Deed of Commitment for the Protection of Children from the Effects of Armed Conflict; and the Deed of Commitment for the Prohibition of Sexual Violence in Situations of Armed Conflict and Towards the Elimination of Gender Discrimination. The texts of these Deeds are available at GENEVA CALL, http://www.genevacall.org/resources/deed-of-commitment/deed-of-commitment.htm (last visited May 12, 2014). A list of NSAG signatories is available at GENEVA CALL, http://www.genevacall.org/ resources/list-of-signatories/list-of-signatories.htm (last visited May 12, 2014). Note that the content of this newly proposed Deed of Commitment could be construed by analogy to the content of the proposed NSAG declaration as discussed in Subpart 3(b) above.
(189) Note that the U.N. General Assembly, for its part, has previously called upon the apartheid regime in South Africa "to renounce the execution of any persons sentenced to death for their opposition to apartheid." G.A. Res. 2394 (XXIII), [paragraph] 2 U.N. Doc. A/RES/2394 (Nov. 26, 1968).
(190) See also Radin, supra note 53, at 145 (examining a possible role for the UNSC in the context of the recognition of belligerency).
(191) Final Record MB, supra note 61, at 11 (Greece), 44 (Austrl.).
(192) See id. at 14 (USSR), 42 (U.S.), 45 (U.S.).
(193) This would, however, presuppose a modification of the competence of the Fact-Finding Commission to enable it to conduct investigations on its own initiative, and/or at the request of the U.N. Security Council. Note that the Commission has expressed its willingness to be seized in situations of NIAC. See The IHFCC in a Few Words, IHFFC (May 20, 2014), http://www.ihffc.org/index.asp? Language=EN&page=aboutus_general.
TOM RUYS, Assistant Professor of International Law at the University of Ghent (Tom.Ruys@UGent.Be). The author wishes to thank the Stanford Journal of International Law editorial team for their helpful comments and suggestions in the production of this work. The Article was finalized on February 27, 2014.
|Printer friendly Cite/link Email Feedback|
|Publication:||Stanford Journal of International Law|
|Date:||Jun 22, 2014|
|Previous Article:||Converging towards NAFTA: an analysis of FTA investment chapters in the European Union and the United States.|
|Next Article:||Seeing torture anew: a transnational reconceptualization of state torture and visual evidence.|