AN ANALYSIS OF THE APPLICATION OF
INTERNATIONAL HUMANITARIAN
LAW TO THE ARMED CONFLICTS
ARISING FROM OPERATION PEACE
SPRING
Greta Ramelli 12636703
Email address: greta.ramelli@yahoo.co.uk
Master Track: LLM International and Transnational Criminal
Law
Supervisor: Vincent De Graaf
Date of submission: Wednesday 15 July 2020
13.000 Words
To all the victims of war crimes committed during the Syrian
conflict, with the hope that one day your suffering will see the
light of justice.
Alla mia Patria, l’Italia, e alla mia famiglia per avermi insegnato
il coraggio e la perseveranza.
Abstract
This thesis investigates the application of IHL to the armed conflicts arising from Operation Peace Spring, which was launched by Turkey in October 2019, in the de
facto autonomous region of Rojava, in northern Syria.
The aim of the thesis is to fill the gap in the existing literature which discusses extensively the allegations of war crimes committed by Turkey and its proxy forces during Operation Peace Spring, without addressing the question of application of IHL,
although the latter is a conditio sine qua non for the existence of war crimes. The research concludes that OPS initiated three main armed conflicts, which classify as transnational armed conflict, international armed conflict and belligerent occupation and
that IHL governs the conduct of the parties to these hostilities. Such conclusions have important consequences for the protection of civilians, combatants and POWs during OPS, as well as a significant impact on the prospects of prosecution of the alleged war
crimes.
Based on the conclusions drawn in this thesis, it is recommendable to conduct future research on the assessment of the relevant conduct as war crimes and the prospects of
Table of Contents
I. INTRODUCTION ... 13
II. CHAPTER I: THE FACTS OF THE CASE ... 16
I. INTRODUCTION ... 16
II. THE SYRIAN CONFLICT ... 16
III. OPERATION PEACE SPRING ... 17
IV. THE HOSTILITIES ... 18
V. THE ACTORS INVOLVED IN OPS ... 21
VI. CONCLUSION ... 23
III. CHAPTER II: THE SCOPE OF APPLICATION OF IHL ... 25
I. INTRODUCTION ... 25
II. THE FOUR SCOPES OF IHL ... 25
i. The Material Scope ... 25
ii. The Personal Scope ... 26
iii. The Temporal Scope ... 27
iv. The Geographical Scope ... 29
III. THE CLASSIFICATION OF ARMED CONFLICT ... 30
i. IAC ... 30
ii. NIAC ... 31
iii. Internationalization of NIAC ... 33
iv. Belligerent Occupation ... 34
v. TACs ... 36
IV. CONCLUSION ... 38
IV. CHAPTER III: THE APPLICATION OF IHL TO OPS ... 39
I. INTRODUCTION ... 39
II. THE FOUR SCOPES OF IHL ... 39
i. The Material Scope ... 39
ii. The Personal Scope ... 39
iii. The Temporal Scope ... 40
iv. The Geographical Scope ... 41
III. THE CLASSIFICATION OF ARMED CONFLICTS ... 42
i. The Cross-border Attacks Amount to NIAC ... 42
ii. The Turkish air- and ground offensive amount to IAC ... 43
iii. The Administration of the ‘Safe Area’ Amount to Belligerent Occupation ... 46
IV. ARISING LEGAL IMPLICATIONS ... 47
V. CONCLUSION ... 48
V. CONCLUSION ... 50
BIBLIOGRAPHY ... 52
Table of Abbreviations
OPS = Operation Peace Spring
IHL = International Humanitarian Law IAC = International Armed Conflict NIAC = Non-international Armed Conflict GC = Geneva Convention
AP = Additional Protocol CA II = Common Article 2 CA III = Common Article 3
ICRC = International Committee of the Red Cross NSAG = Non-state Armed Group
OAG = Organized Armed Group FSA = Free Syrian Army
IS (also known as ISIS, ISIL and Daesh) = Islamic State SDF = Syrian Democratic Forces
PKK = Kurdistan Workers’ Party SNA = Syrian National Army YPG = People’s Protection Units TAC = Transnational Armed Conflict ICJ = International Court of Justice
Table of International Instruments
Convention on Rights and Duties of States adopted by the Seventh International Conference of American States (adopted 26 December 1933, entered into force 26 December 1934)
(Montevideo Convention)
Geneva Convention I for the Amelioration of the Condition of Wounded and Sick in Armed Forces in the Field (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 31
(GC I)
Geneva Convention II for the Amelioration of the Condition of the Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 85
(GC II)
Geneva Convention III relative to the Treatment of Prisoners of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 135
(GC III)
Geneva Convention IV relative to the Protection of Civilian Persons in Time of War (adopted 12 August 1949, entered into force 21 October 1950) 75 UNTS 287
(GC IV)
Hague Convention (IV) Respecting the Laws and Customs of War on Land and its Annex: Regulations Concerning the Laws and Customs of War on Land (adopted 18 October 1907, entered into force 26 January 2010) International Conferences (The Hague)
(HR)
Protocol Additional I to the Geneva Conventions of 12 August 1949, and Concerning the Protection of Victims of International Armed Conflicts (adopted on 8 June 1977, entered into force 7 December 1978) 1125 UNTS 3
Protocol Additional II to the Geneva Conventions of 12 August 1949, and Concerning the Protection of Victims of Non-International Armed Conflicts (adopted 8 June 1977, entered into force 7 December 1978) 1125 UNTS 609
(AP II)
Vienna Convention on the Law of Treaties (adopted 23 May 1969, entered into force 27 January 1980) UNTS 18232.
Table of Judgements and Decisions International Court of Justice
Armed Activities on the Territory of the Congo (Democratic Republic of the Congo v. Uganda), Judgment, I.C.J. Rep. 2005 (Dec. 19) p. 168.
(Armed Activities)
Case Concerning Military and ParamilitaryActivities in and against Nicaragua (Nicaragua v. United States of America), Merits, Judgment, I.C.J. Rep. 1986 (Jun. 27) p. 14.
(Nicaragua Case)
Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion, I.C.J. Rep. 2004 (Jul. 9) p. 136.
(Wall Case)
International Criminal Tribunals
Judgment, Naletilić & Martinović (IT-98-34), Trial Chamber, 31 March 2003
(Naletilić & Martinović Judgment)
Judgment, Boškoski & Tarčulovski (IT-04-82), Trial Chamber, 10 July 2008
(Boškoski & Tarčulovski Judgment)
Judgment, Haradinaj et al. (IT-04-84), Trial Chamber, 3 April 2008
(Haradinaj et al Judgment)
Judgment, Fatmir Limaj, Haradin Bala, Isak Musliu (IT-03-66-T), Trial Chamber II, 30 November 2005.
(Limaj et al Judgment)
Judgment, Tadić (IT-94-1-A), Appeals Chamber, 15 July 1999.
Opinion and Judgement, Tadić (IT-94-1-T), Trial Chamber, 7 May 1997.
(Tadić Opinion and Judgment)
Decision on the Defence Motion for Interlocutory Appeal on Jurisdiction, Tadić (IT-94-1), Appeals Chamber, 2 October 1995.
(Tadić Decision)
Decision on Motion for Judgment of Acquittal, Slobodan Milosevic (IT-02-54-T), Trial Chamber, 16 June 2004.
(Milosevic Decision)
Judgment, Akayesu (ICTR 96-4-T), Trial Chamber, 2 September 1998.
(Akeyesu Judgment)
Judgment, Kayishema and Ruzindana (ICTR-95-1-T) Trial Chamber 21 May 1999.
(Kayishema et al Judgment)
International Criminal Court
Judgment, Thomas Lubanga Dyilo (ICC-01/04-01/06-2842), Trial Chamber I, 14 March 2012.
(Lubanga Judgment)
Other Jurisdictions
Partial Award, Central Front Eritrea’s Claims 1,3, 5, 9-13 (The State of Eritrea v The Federal Democratic Republic of Ethiopia), Eritrea-Ethiopia Commission, Rep. 2004 (April 28).
Table of Other Legal Instruments
Henckaerts J M & others, Customary International Humanitarian Law, vol I
(International Committee of the Red Cross ICRC, Cambridge University Press 2005)
(CIHL Study)
International Committee of the Red Cross, Commentary on the Geneva Convention (I) of August 12 1949, ‘Treaties States Parties and Commentaries’ (2016)
(Commentary GC I)
International Committee of the Red Cross, Commentary on the Geneva Convention (IV) of August 12 1949, ‘Treaties States Parties and Commentaries’ (1958)
(Commentary GC IV)
International Committee of the Red Cross, Commentary on the Draft Additional Protocols to the Geneva Conventions of August 12, 1949 (1973)
(Commentary 1973)
Pictet J, Commentary on the Geneva Convention (I) of August 12 1949, Art. 2: Application of the Convention (ICRC, 1952)
(Pictet Commentary GC I)
Identical letters dated 20 January 2018 from the Chargé d’affaires a.i. of the Permanent Mission of Turkey to the United Nations addressed to the Secretary-General and the President of the Security Council, S/2018/53 (22 Jan 2018)
(Letters to the UN, S/2018/53)
Letter dated 9 October 2019 from the Permanent Representative of Turkey to the United Nations addressed to the President of the Security Council, S/2019/804 (9 Oct 2019)
(Letter to the UN, S/2019/804)
Letter dated 17 October 2019 from the Permanent Representatives of Turkey and the United States of America to the United Nations addressed to the President of the Security Council, S/2019/826 (18 October 2019)
Meetings Coverage on Turkey’s Military Operation Has Displaced Thousands of Civilians, Worsened Syria’s Dire Humanitarian Crisis, Top Official Warns Security Council, Security Council 8645TH MEETING (2019) SC/ 13994
(Meetings Coverage SC/ 13994)
Memorandum of understanding between Turkey and the Russian Federation (Sochi, 22 October 2019), S/2019/833 (22 October 2019)
(MoU S/2019/833)
Note verbale dated 15 April 2020 from the Permanent Mission of Turkey to the United Nations Office at Geneva addressed to the Office of the United Nations High
Commissioner for Human Rights & Annex I-II, A/HRC/43/G/30 (11 May 2020) (Note verbale to the UN, A/HRC/43/G/30)
Report of the Commission of Enquiry on Lebanon pursuant to Human Rights Council resolution S-2/1, UN Doc. A/HRC/3/2 (2006).
(Report Lebanon A/HRC/3/2)
Report on the Meaning of Armed Conflict in international law, ILA The Hague Conference (2010)
(ILA Report)
Security Council Briefing on the situation in Syria, Special Envoy Geir O. Pedersen (2020)
I.
Introduction
In October 2019, following the pull-out of US troops from Syria and the claimed defeat of the Islamic State (IS), Turkey launched Operation Peace Spring (OPS). The operation aimed to create a ‘safe zone’ in the de facto autonomous region of Rojava, in north-east Syria, where to relocate a significant number of refugees and prevent the creation of a ‘terrorist corridor’ by Kurdish militias. To this aim, Turkey resorted to multiple air and ground offensives against Rojava in coordination with the local forces, the Syrian National Army (SNA).1
As the operation unfolded, incriminating evidence of massive war crimes committed by the Turkish army and the SNA emerged. In a series of verified video footages corroborated by witness testimonies, the actors involved in OPS allegedly committed indiscriminate shelling, summary killings, rape and torture, abductions of Kurdish civilians and looting. The international community accused Turkey of violating international humanitarian law (IHL), holding it responsible also for the crimes committed by its proxy forces.2
However, none of such accusations were supported with a convincing legal analysis on the application of IHL, which should be at the basis of any claim for prosecution of war crimes. In fact, a certain conduct will not qualify as ‘war crime’ unless it amounts to a serious violation of IHL. This entails that it must be proven in the first place that IHL is applicable to OPS.3
The lack of an accurate legal analysis on the application of IHL to OPS and the need of such to substantiate the widespread accusations of war crimes prompted the author to investigate this issue further and fill the gap in the existing literature. Accordingly, this thesis aims to answer the following research question: Does international humanitarian law apply to the hostilities arising from Operation Peace Spring in the de facto autonomous region of Rojava?
1 ‘Operation Peace Spring starts in Syria: Erdogan’ AA (Ankara, 9 October 2019)
https://www.aa.com.tr/en/operation-peace-spring/operation-peace-spring-starts-in-n-syria-erdogan/1607147 accessed 14 July 2020. See Map Annex I.
2 ‘Syria: Damning evidence of war crimes and other violations by Turkish forces and their allies’ (2019)
AI
https://www.amnesty.org/en/latest/news/2019/10/syria-damning-evidence-of-war-crimes-and-other-violations-by-turkish-forces-and-their-allies/ accessed 14 July 2020.
As this question explores the application of IHL to OPS, it requires a deep analysis of the facts of the case, the applicable law and finally a detailed application of such law to the facts. Accordingly, the research question may be divided into three main sub-questions, each guiding a distinct Chapter: I. Which are the facts of the case? II. Which is the applicable law? III. How does the law apply to the facts?
Chapter I collects all the information and facts relevant to the application of IHL to OPS. It starts by providing a general overview of the Syrian war and the parties involved to help understand the context in which OPS is implemented and its complex dynamics. This is followed by a detailed description of the nature and goals of the operation, the sequence of events and the actors involved.
Chapter II selects the rules of IHL that are relevant for its application to the facts of the case collected in Chapter I and discusses possible legal controversies. The rules are traditionally divided across four scopes of application: The material, personal, geographical and temporal scope. A central issue to the material scope is the classification of armed conflict, which in view of its length and complexity, is explored in a separate section.
Chapter III applies the IHL rules set out in Chapter II to the facts of the case compiled in Chapter I. It begins with the application of the four scopes of IHL to the hostilities arising from OPS and continues with the identification of three armed conflicts, their classification and the general implications of such findings.
Finally, the conclusion provides a clear answer to the research question and reflects on recommendations for future research to implement the work done by the author and overcome the limitations of this thesis.
Concerning the limitations, the focus of this thesis lays exclusively on the application of IHL to the hostilities arising from OPS. It does not assess in detail whether and how the conduct of these actors violated IHL and whether these violations amount to war crimes. Another limitation regards the strict separation of ius ad bellum and ius in bello as this thesis restricts the discussion solely to the latter.
Furthermore, the analysis is limited to the Turkish intervention against the Kurdish forces in Rojava and does not extend to the attacks against IS, although the latter was also targeted by OPS. This is justified by the fact that the Kurdish population was mostly affected by OPS, as the allegations of war crimes indicate. Similarly, it does not assess previous Turkish interventions in northern Syria, as they occurred outside Rojava. A final limitation regards the methodology adopted in this thesis, which conforms to the legal nature of the research question.
The rules and discussions on the application of IHL are endless as international jurisprudence is in continuous development. In this thesis, the research was limited exclusively to that information that is necessary to assess whether IHL applies specifically to OPS.
With regards to the facts of the case, the research was based predominantly on the consultation of online newspapers, journals and websites as well as human rights reports. Concerning the legal sources, the author relied extensively on the IHL legal instruments, as well as the International Committee of the Red Cross (ICRC) Commentaries and the international case law, which proved essential for a correct interpretation of the laws. Other fundamental legal sources were books, journal articles and official reports of human rights organisations and UN agencies.
Finally, the author took measures to contrast the spread of fake news and ensure the authenticity of this thesis. When two or more sources reported conflicting information, the author cross-checked such information with an additional source to verify its veracity. In case of persistent doubt, the information was not included. Furthermore, only official websites of widely known journals and human rights organisations were consulted.
To the knowledge of the author, this thesis represents the first attempt of a comprehensive collection of facts related to OPS and application of IHL to them. Therefore, it is acknowledged that further research on the facts and applicable law may benefit the quality of this analysis and provide further insights on the prosecution of the violations of IHL in the context of OPS.
II.
Chapter I: The Facts of the Case
I. Introduction
This Chapter explores the facts of the case. First, it provides a general knowledge of the context in which OPS was conducted. Second, it builds a coherent and specific record of the relevant actors and events of the operation. The result is a collection of information that is fundamental for the selection of the relevant rules of IHL in Chapter II and their application to the facts of the case in Chapter III.
II. The Syrian Conflict
Turmoil in Syria started in February-March 2011 when the country was flooded with manifestations against the regime of President al-Assad. The government response was brutal, with hundreds of thousands being arrested and tortured as well as killed.4 As the military crackdown continued, high-ranking military leaders and soldiers defected from the regime forces, the Syrian Army, and formed the first opposition group, the FSA.5
Over nine years, the situation evolved into a complex set of different armed conflicts involving several state actors and non-state armed groups (NSAGs), each following its agenda.6 The regime forces constitute the most compact and stable front. They consist of the Syrian army and the military power of the Assad’s allies, Russia and Iran.7 Together they fight against the opposition to keep the Assad regime in power.
The NSAGs form a scattered opposition and they may be divided into four main groups: The loose coalition, the AQ groups, IS and the Kurdish militias. The loose coalition initially consisted of various groups with moderate and Islamic ideology. Currently, it is mostly represented by the SNA. The AQ groups and IS are international terrorist organisations. Finally, the Kurdish militias exercise control over the Rojava and 4 ‘Crackdown in Syria: Terror in Tell Kalakh’ (2011) AI MDE 24/029/2011
https://www.amnestyusa.org/files/mde240292011en.pdf accessed 14 July 2020.
5 Yara Bayoumy, ‘Military defections expose cracks in Syrian army’ Reuters (Beirut, 29 June 2011)
https://www.reuters.com/article/us-syria-defections/military-defections-expose-cracks-in-syrian-army-idUSTRE75S5E620110629 accessed 14 July 2020.
6 Terry D. Gill, ‘Classifying the Conflict in Syria’ (2016) 92 INT’L L. STUD, 354
http://www.nuhanovicfoundation.eu/user/file/2016,_classifying_the_conflict_in_syria,_t.d._gill.pdf accessed 14 July 2020.
they are organised in one main group, the Syrian Democratic Forces (SDF). The SNA and the SDF played a key role in OPS, thus their structure is analysed in depth in Section V.8
III. Operation Peace Spring
During the Syrian war, the Kurdish militias and the Turkish forces exchanged several cross-border armed attacks which resulted in the death of soldiers, civilians and in the destruction of properties. It is estimated that until 2016 more than 5000 people were killed, and more than half a million people were forced to flee.9
As the cross-border attacks continued in 2016 and the SDF represented a significant terrorist threat to Turkey, the latter started a series of counterterrorism operations in northern Syria through ground and air offensive. In the context of such operations, Turkish troops and its proxy established their military and administrative control over large territories through governance, socioeconomic and cultural-religious interventions.10 This degree of control increased significantly as OPS, the third counterterrorism operation, was implemented in October 2019.
The Turkish government envisaged multiple goals for OPS. First, it aimed to secure Turkish national interests threatened by the formation of a ‘terrorist corridor’ of Kurdish militias along the 911-km border with Syria.11 Second, it would create a 30-km-deep safe zone between the towns of Tel Abyad and Ras al-Ayn in Rojava, where to build around 140 new villages and 10 towns and relocate around 3 million Syrian refugees. Each village would consist of 100 houses and each house would have around 10’000 square feet of farmland. According to Turkey’s resettlement plan, also new infrastructure including mosques, schools, universities, sporting facilities and hospitals would be established in the safe zone.12 Third, in Turkey’s view, OPS would ensure Syria’s
8 Gill (n 6) 357-359.
9 ‘Displaced and Dispossessed’ (2016) AI EUR 44/5213/2016
https://www.amnesty.org/en/documents/eur44/5213/2016/en/ accessed 14 July 2020.
10 Engin Yüksel, ‘Strategies of Turkish proxy warfare in northern Syria’ (2019) Clingendael Institute 6-7
https://www.clingendael.org/sites/default/files/2019-11/strategies-turkish-proxy-warfare-in-northern-syria.pdf accessed 14 July 2020.
11 ‘Operation Peace Spring’ (n 1).
12 ‘Turkey plans $27 billion housing project in northeast Syria: broadcaster TRT’ Reuters (Istanbul, 27
territorial integrity largely threatened by Kurdish militias which fight with separatist claims.13
OPS was heavily criticized by Syria and most of the international community. The Assad regime accused Turkey of violating its territorial sovereignty and regarded OPS as ‘a disgraceful breach of international law’.14 Other states requested the immediate end of the operation as they feared the possibility of an ethnic cleansing against the Kurds and another humanitarian crisis in Syria, especially in light of the allegations of war crimes.15 The Turkish government rejected all accusations arguing that the operation was initiated and conducted in accordance with international law, in particular the right to self-defence enshrined in art. 51 UN Charter and CIL and did not specifically target the Kurdish population.16
IV. The Hostilities
Shortly before the official beginning of OPS, Turkey launched a series of airstrikes and artillery barrages against Kurdish positions, with the ground support of the SNA. The attacks hit several SDF buildings, civilian infrastructure, and injured and killed civilians, causing hundreds of thousands to leave the area.17
On October 9, Turkey announced the official beginning of OPS, in cooperation with the SNAand proceeded with heavy shelling on SDF locations situated in Ras al-Ayn, Tel Abyad, Ayn Issa and Qamishli, all strategic locations for the establishment of the safe area. The attacks killed at least five civilians, three SDF fighters and wounded
https://www.reuters.com/article/us-syria-security-turkey/turkey-plans-27-billion-housing-project-in-northeast-syria-broadcaster-trt-idUSKBN1WC1V2 accessed 14 July 2020.
13 ‘Operation Peace Spring’ (n 1).
14 ‘Syrian gov’t slams new Turkish operation in Syria’ AMN (Beirut, 9 October 2019)
https://www.almasdarnews.com/article/syrian-govt-slams-new-turkish-operation-in-syria/ accessed 14 July 2020.
15 Branislav Stanicek, ‘Parliament, ‘Turkey's military operation in Syria and its impact on relations with
the EU’ (2019) Briefing, 3
https://www.europarl.europa.eu/EPRS/EPRS-Briefing-642284-Turkeys-military-operation-Syria-FINAL.pdf accessed 14 July 2020.
16 Letter to the UN, S/2019/804. 17 Meetings Coverage SC/ 13994.
dozens of civilians. It also caused thousands to flee the area. The SDF soon retaliated by launching rockets on Turkish cities.18
The following day, Turkish forces started their ground offensive into Rojava where they joined the SNA forces and made advances in the area of Tel Abyad. Violent clashes with the SDF broke out in several locations causing the death and injury of SNA and Turkish soldiers, as well as civilians. Reportedly around 300 SDF fighters had been neutralized until then and more than 100.000 people were reported to have fled their homes.19
As the Turkish forces captured dozens of villages around Tel Abyad and prepared to advance on Ayn Issa, numerous reports emerged alleging the commission of war crimes by the SNA, as extrajudicial killings, rape and torture of SDF combatants and activists. In this context, horrendous details on the assassination of Hevrin Khalaf, a prominent female politician, came to light.20
On October 14, following the conclusion of a military alliance with the SDF, the Syrian army advanced into the Kurdish-held territories and established itself at the frontline between the areas controlled by the SNA and those controlled by the SDF.21 Meanwhile Turkey continued its ground and aerial attacks in the surroundings of Ras al-Ayn, which reportedly targeted civilian houses and injured medical personnel. By then, Turkey had captured at least 41 areas in the east of the Euphrates.22
The intervention of the Syrian army in the hostilities contributed to an escalation of violence. Several combatants and civilians were injured and killed, and thousands fled the area. In view of the intensification of the fighting, the Syrian army deployed
18 Mert Ozkan, ‘Turkey opens ground assault on Syria’s Kurds; U.S. Republicans turn on Trump’ Reuters
(9 October 2019) https://www.reuters.com/article/us-syria-security-turkey-usa-idUSKBN1WO05Z accessed 14 July 2020.
19 ‘Turkey Syria Offensive: 100,000 flee home as assault continues’ BCC (11 October 2019)
https://www.bbc.com/news/world-middle-east-50020829 accessed 14 July 2020.
20 ‘Syria: Damning evidence of war crimes (n 2).
21 ‘U.S. forces try to hinder the deployment of the Russian force and regime forces in the area separating
between Manbij Military Council and the factions of “Euphrates Shield”’ (SOFHR, 14 October 2019) https://www.syriahr.com/en/?p=143901 accessed 14 July 2020.
22 ‘Turkish bombardment targets Al-Darbasiyyah city in conjunction with ongoing airstrikes and violent
battles witnessed in Ras Al-Ayn city’ (SOFHR, 14 October 2019) https://www.syriahr.com/en/?p=143916 accessed 14 July 2020.
reinforcements to the north and the Russian allies sent military vehicles and tanks to Kobane.23
On October 17, Turkey and the US agreed to a 120-hour ceasefire of OPS to allow the People’s Protection Units (YPG) withdrawal from the OPS area, starting from October 18.24
Both sides accused each other of repeatedly violating the terms of the agreement until its expiration on October 22 and carry out deadly attacks against both civilians and combatants.25
On October 22, Russia and Turkey concluded a MoU, agreeing on Turkish-Russian joint patrols, with the aim of clearing the ‘safe area’ of YPG elements. Furthermore, the deal acknowledged and preserved the status quo established by Turkey during OPS.26 The Syrian government regarded the deal as an ‘illegal annexation’.27 Despite the implementation of the MoU, intermittent clashes continued between all the forces involved.28
During the post-OPS phase, Turkey continued its collaboration with the SNA and the joint patrols with Russia. Furthermore, it reinforced its troops and equipment in the area, strengthening its military control over territories inhabited by the Kurdish population, which has continued opposing resistance.29
Besides its military control, Turkey extended its administrative powers to the key towns located in the ‘safe area’, with the ultimate goal of facilitating ‘the safe and voluntary return of displaced Syrians to their homes of origin or other places of their
23 ‘Turkey Syria Offensive: Heavy Fighting on Second Day of Assault’ BBC (10 October 2019)
https://www.bbc.com/news/world-middle-east-49998035 accessed 14 July 2020.
24 Letter to the UN, S/2019/826.
25 Umut Uras ‘Turkey's Operation Peace Spring in northern Syria: One month on’ (AJ, 8 November 2019)
https://www.aljazeera.com/news/2019/11/turkey-operation-peace-spring-northern-syria-month-191106083300140.html accessed 14 July 2020.
26 MoU S/2019/833.
27 ‘Turning to Putin, Erdogan ignores U.S. agreement for northeastern Syria’ (PBSNewsHour, 22 October
2019) https://www.youtube.com/watch?v=D11ZbR9uwaA accessed 14 July 2020.
28 ‘Explosion in Syrian Town on Turkish Border Kills 13’ New York Times (2 November 2019)
https://www.nytimes.com/2019/11/02/world/middleeast/car-bomb-syria-tal-abyad.html accessed 14 July 2020.
29 ‘Civilians Throw Rocks at Turkish Military Convoy in Northwestern Syria’ (VOA News, 2 January
choice’.30 It established several local councils in the key towns of Tel Abyad and Ras al-Ayn, in charge of managing the return and resettlement of Syrians and organising elections in the area.31 Together with the SNA, it also coordinated the return of hundreds of former residents to Tel Abyad and distributed humanitarian aid, as food, water and medicines in the OPS area.32 Turkey also commenced the reconstruction of the ‘safe area’ to provide the population with new infrastructure as functioning roads.33
V. The Actors involved in OPS
The actors involved in OPS are two states, Syria and Turkey and two NSAGs, the SNA and the SDF. Starting with Syria, the legitimacy of the Assad government has been questioned by the refusal of many states to continue to recognise it as the government of Syria, following the massive allegations of war crimes and crimes against humanity committed by the Assad regime, as well as by the fact that over the war, the regime lost control on several parts of the country, especially in northern Syria.
Despite that, the Assad regime has never lost its grip on the heart of the country, the capital Damascus and since the defeat of IS, it has restored control over most of the Syrian territory. Also, from a military perspective, the regime forces loyal to the Assad government continue representing the national army, which despite the defections, still counts more than 100’000 personnel.34 Furthermore, the government machine has remained rather united and functioning and it has been able to maintain political and diplomatic relations with most states as well as to represent the country in the UN.35
30 Eyal Benvenisti & Eliav Lieblich, ‘Assessing Turkey’s Resettlement Plans in Syria under the Law of
Occupation’ Just Security (23 October 2019) https://www.justsecurity.org/66679/assessing-turkeys-resettlement-plans-in-syria-under-the-law-of-occupation/ accessed 14 July 2020.
31 ‘Local Council set up in terror-free Tal Abyad in Syria Hurriyet Daily News (Tal Abyad, 28 October
2019) https://www.hurriyetdailynews.com/local-council-set-up-in-terror-free-tal-abyad-148021 accessed 14 July 2020.
32 ‘Residents of Tal Abyad return home’ (AP Archive, 21 October 2019)
https://www.youtube.com/watch?v=0qbXl4oozjc accessed 14 July 2020.
33 Burak Bir, ‘Syria: Turkey rebuilding roads in northern Syria’ AA (Ankara, 16 November 2019)
https://www.aa.com.tr/en/middle-east/syria-turkey-rebuilding-roads-in-northern-syria/1647296 accessed 14 July 2020.
34 Gill (n 6) 355. 35 SC Briefing on Syria.
Turkey is a key military power, as the second largest member of NATO, and from an international law perspective, its sovereignty is not questioned. Turkey’s objectives in Syria have been multiple, such as extending its political and military influence in northern Syria, establish and administer two semi-autonomous Turkish protectorates in the west of the Euphrates and a safe zone in the east of the Euphrates, and increase the chances of collapse of the Assad regime, with the ultimate objective of replacing its forces with the SNA.36
The formation of the SNA was the result of a three-year-long process (2016-2019) of centralising, restructuring and strengthening the myriad of NSAGs active in the Syrian war,37 under Turkey’s supervision. The latter mediated between the scattered opposition and the Syrian Interim Government (SIG), with the result that the SIG recognised the SNA as the official army of the opposition. This was the first time in 8 years of war, that the opposition reached such level of unity and could benefit from both a military and political dimension.38
Besides its contribution to the mediation process, the SNA also received key material and logistical support by Turkey, as recruitment, financing, and equipment supplies.39 Turkey has paid salaries to the SNA fighters, provided them with regular military training,40 including in airdrop operations using Turkish helicopters and supplied the SNA with armoury and combat vehicles.41 The SNA was further strengthened through its involvement in Turkish counterterrorism operations, including OPS, in the context of which it fought alongside the Turkish army.42 Currently, it consists of around 70.000-90.000 fighters.43
36 Jan Van Leeuwen & Erwin Van Veen, ‘Turkey in north-western Syria: Rebuilding empire at the
margins’ (2019) Clingendael Institute 1-10
https://www.clingendael.org/sites/default/files/2019-06/PB_Turkey_in_Northwestern_Syria_June_2019.pdf accessed 14 July 2020. See also Erwin Van Veen & Engin Yüksel, ‘Too big for its boots, Turkish foreign policy towards the Middle East from 2002 to 2018 (2018) Clingendael Institute.
37 Ömer Özkizilcik, ‘Uniting the Syrian Opposition: The Components of the National Army and the
Implications of the Unification’ 8 (2019) SETA no.54.
38 ‘Syria Actors’ (2019) Country of Origin Information Report, European Asylum Support Office, 56 doi:
10.2847/608683 accessed 14 July 2020.
39 Yüksel (n 10) 6-7 &16.
40 ‘Turkish-Backed Fighters Train for Syria Incursion’ (VOA News, 7 October 2019)
https://www.youtube.com/watch?v=KAda3lIzDUI accessed 14 July 2020.
41 Özkizilcik (n 37) 12. 42 Yüksel (n 10) 6-7 &16. 43 Özkizilcik (n 37) 10.
The Kurdish militias merged in the SDF in 2015,44 an army of around 20.000-30.000 fighters, which is dominated by the YPG and wields military control over the region (around a quarter of all Syrian territory).45 The YPG is known to have strong links with the Kurdistan Workers’ Party (PKK), widely recognised as a terrorist group with which Turkey fought an armed conflict for over thirty years with an estimate of about 40.000 victims. The YPG maintains the ‘command and control’ of the SDF and provides the latter with the core fighting forces, leadership, training, logistics and military planning.46 The YPG has also internal regulations and instructions on military measures.47
The SDF has also developed a clear internal structure comprising of several organs, including the Military Council, which represents the highest authority in the military chain.48 It also recruits fighters by accepting volunteers, offering monetary compensation as well as forcing conscription.49 Furthermore, SDF members have access to specialized military trainings offered in several cantons in the region.50
The SDF is present all over the Kurdish territories where it carries out security operations as counterinsurgency, checkpoint and detention operations, local patrols. It also partnered with the US in the fight against IS, a strategic action that boosted its legitimacy before the international community and its military strength on the territory, as it received financing and training from the US. Other sources of financing stem from the autonomous administration.51
VI. Conclusion
This Chapter concluded that during the Syrian Conflict, the SDF has launched several cross-border attacks against Turkey and as a result, since 2016 Turkey has conducted multiple extraterritorial operations in northern Syria. In October 2019, in cooperation
44 Gill (n 6) 360.
45 Bedir Mulla Rashid, ‘Military and Security Structures of the Autonomous Administration in Syria’
(2018) Special Report, Omran Center for Strategic Studies, 16
https://omranstudies.org/publications/reports/military-and-security-structures-of-the-autonomous-administration-in-syria.html accessed 14 July 2020.
46 Rashid (n 45) 15-16. 47 Rashid (n 45) 37- 56. 48 Rashid (n 45) 48. 49 Ibid (n 45). 50 Rashid (n 45) 27. 51 Rashid (n 45) 54-57.
with the SNA, Turkey launched OPS in Rojava with the aim of establishing the ‘safe zone’ and neutralize the SDF. Based on the facts collected, next Chapter analyses the rules relevant for the application of IHL to OPS.
III. Chapter II: The Scope of Application of IHL
I. Introduction
War crimes are defined as serious violations of IHL. This entails that the first step to prove the existence of war crimes is the application of IHL to the armed conflicts at stake, a complex exercise that requires the analysis of numerous rules set out in legislation and international jurisprudence.52 This Chapter identifies, organises and discusses such rules with the aim of providing the legal framework for the application of IHL to OPS.
II. The Four Scopes of IHL
The scope of IHL is traditionally divided into four scopes of application, each addressing a different dimension of IHL: The material, personal, temporal and geographical scope. This section analyses each scope in detail.
i. The Material Scope
IHL regulates and therefore only applies in times of armed conflict, which “exists whenever there is a resort to armed force between States [or] protracted armed violence between governmental authorities and organised armed groups or between such groups within a State”.53 It follows that two situations may qualify as armed conflict: Interstate armed hostilities, designated as IAC, including belligerent occupation, and intrastate hostilities, involving NSAGs, namely NIAC.
Traditionally IHL is governed by the dichotomy between IAC and NIAC legal regimes. IACs are governed by the Law of International Armed Conflict (LOIAC), including the law of belligerent occupation. LOIAC consists of most rules of IHL, as the GCs and AP I, and largely reflects Customary International Law (CIL). NIACs are governed by a separate legal regime largely based on Common Article III GCs (CA III), which represents CIL, and Additional Protocol II (AP II).54
Although the separation between the two systems is rooted in IHL, the recent ICRC CIHL Study indicates that an increasing number of norms have gained CIL status,
52 Tadić Decision, para 94. 53 Tadić Decision, para 70. 54 CIHL Study, xxxiv.
suggesting that their application is not strictly subject to the classification of armed conflict any longer.55
In view of these developments, is it still necessary to classify the armed conflicts? With regards to most war crimes, the legal implications do not diverge significantly, depending on the classification, as the governing rules constitute CIHL.56 However, classification remains crucial to determine the applicability of specific norms of IHL as well as the fulfilment of the definition of war crimes in the instrument applied for prosecution.57 The classification of armed conflict is discussed in Section III.
ii. The Personal Scope
IHL imposes obligations on parties to an armed conflict, which may be sovereign states, Organised Armed Groups (OAGs), and individuals. Sovereign states are defined in CIL as having a permanent population, defined territory, one government and the capacity to enter into relations with other sovereign states.58 OAGs are defined in IHL as those armed groups that fulfil the requirements set out in the legal regime applicable to NIAC, which is duly explained in Subsection ii.
In principle, a state is bound by a treaty only upon its ratification, unless the relevant rules constitute CIL and thus they are binding at all times.59 Most IHL rules, as those included in the GCs and HRs, are binding regardless of ratification as they constitute CIL. Other rules, as many of those included in the APs, have not gained CIL status yet and they are binding only if the state has ratified the relevant treaty.60
With regards to OAGs, IHL is binding on them as soon as the specific requirements for the existence of NIAC are fulfilled and the conflict occurs in the territory of a state that is party to the relevant treaty. Finally, also individuals, as combatants and civilians, are bound by IHL in specific circumstances and only this latter category can
55 CIHL Study.
56 CIHL Study, 568-604. See also Tadić Decision, para 94. 57 ‘Classification of Armed Conflicts’ (Geneva Academy, 2017)
http://www.rulac.org/classification#collapse3accord accessed 14 July 2020.
58 Montevideo Convention, art. 1.
59 Dieter Fleck, (ed) The Handbook of International Humanitarian Law (3rd edn, OUP 2013) 53. 60 CIHL Study, xxxiv.
commit war crimes.61 In fact, by definition, war crimes entail individual criminal responsibility, which cannot arise from the conduct of a state, or other organizations.62
The personal scope of IHL does not only address the parties to the armed conflict, but also the subjects of protection of IHL, which in IAC are called ‘protected persons’ and include wounded, sick and shipwrecked,63 prisoners of war (POWs)64 and civilians.65 While no such formal categories exist in NIAC, IHL grants some level of protection to those who do not or no longer actively participate in hostilities.66
iii. The Temporal Scope
As a general rule, IHL starts applying as soon as an armed conflict arises. Diverging theories exist with regards to the exact moment in which this occurs.67
The first-shot theory holds that ‘any difference arising between two states leading to the intervention of members of the armed forces is an armed conflict’. This view is widely supported by the ICRC and international jurisprudence.68 An alternative view holds that an armed conflict must always reach a certain threshold of intensity.69 Hence, minor confrontations as border clashes are excluded from the scope of CA II.70
The latter view is widely criticized for setting the threshold for application of LOIAC too high, with the result that it creates an international legal vacuum.71 I join the criticism and adhere to the first-shot theory in this thesis, considering that, contrary to OAGs, states always have the potential of causing extreme suffering, due to the size of their military resources and capabilities. This feature justifies the absence of a specific threshold in interstate hostilities.
The temporal scope of belligerent occupation is not addressed by art. 42 HR. Some hold that a minimum of time is required for the invading forces to settle and
61 Fleck (n 59) 55.
62 Tadić Decision, para 94. 63 GC I, art. 13. 64 GC II, art. 4. 65 GC IV, art. 4. 66 Fleck (n 59) 55. 67 Fleck (n 59) 44-61. 68 Commentary GC I, para 236-238. 69 ILA Report, 2.
70 ILA Report, 17 & 28. 71 Fleck (n 59) 45.
exercise effective control on the territory.72 Some others contend that IHL applies as soon as the intervening state comes into contact with the occupied population, hence upon invasion.73 In light of the purpose of protection of IHL and the endorsement of the International Criminal Tribunal of former Yugoslavia (ICTY), the latter view is preferred.74
In NIAC, IHL applies as soon as the hostilities reach the required level of intensity of violence and the parties are sufficiently organized, as discussed in Subsection ii. For now, suffice to know that it is often challenging to identify the exact moment in which IHL applies, as NIACs are often preceded by violent riots and disturbances.75
With regards to the end of application of IHL in IAC, according to art. 6 (2) GC IV and 3 (b) AP I, LOIAC ceases to apply on the ‘general close of military operations’,76 meaning ‘the final end of all fighting between all those concerned’.77
In the case of belligerent occupation, two main provisions, potentially conflicting, regulate the end of application of LOIAC. Art. 6 (3) GC IV holds that the convention ceases applying ‘one year after the general close of military operations,’78 whereas art. 3 (b) AP I drops the one-year limit from GC IV and extends the applicability of IHL until ‘the termination of the occupation,’79 which occurs as soon as one requirement for occupation is not met any longer.80
There is reason to suggest that CIL follows art. 3 (b) AP I instead of art. 6 (3) GC IV, however, given that this question is not settled, in this thesis, the applicability of GC IV remains subject exclusively to art. 6 (3) GC IV.81
72 Partial Award Case, 1,3, 5, 9-13.
73 Tristan Ferraro, ‘Occupation and Other Forms of Administration of Foreign Territory’ (2012) Expert
Meeting ICRC, 26.
74 Naletilić & Martinović Judgment, para 222. 75 Dieter Fleck (n 59) 60.
76 GC IV, art 6 (2) & AP I, art. 3 (b).
77 Marko Milanovic, ‘The end of Application of International Humanitarian Law’, (2014) 96 (893) Int.
Rev. Red Cross, 163-188, 173 https://international-review.icrc.org/sites/default/files/irrc-893-milanovic.pdf accessed 14 July 2020.
78 GC IV, art. 6 (3).
79 AP I, art. 3 (b). See also: Ferraro, ‘Occupation and Other Forms of Administration of Foreign
Territory’ (n 73) 26-33.
80 Ferraro, ‘Occupation and Other Forms of Administration of Foreign Territory’ (n 73) 11. 81 Milanovic (n 77) 176.
Finally, in NIAC, IHL ceases to apply with the ‘end of the armed conflict’, except for persons deprived of their liberty, who continue being under its protection.82 One view holds that this occurs as soon as one of the requirements for NIAC is not met any longer. However, this approach is unworkable as it demands a continuous assessment of the situation. The preferred view, endorsed by the ICTY, contends that once the requirements for NIAC are met, IHL will remain applicable until a peaceful settlement is concluded.83
Any agreement may be considered evidence of ‘cessation of hostilities’, ‘termination of occupation’ or ‘end of the armed conflict’. However, they are neither required nor conclusive on point, unless followed by a factual situation that proves stability and permanence.84
iv. The Geographical Scope
In principle, IHL applies throughout the entire territory of the parties to the conflict,85 as reflected in the rules pertaining to POWs and civilians, set out respectively in GC III and IV.86 However, some rules apply only to the vicinity of the actual hostilities.87 Additionally, parties may choose to restrict the scope of IHL even further by prohibiting military operations in special areas.88
Art. 42 HR does not address the geographical scope of the law of belligerent occupation and the International Court of Justice (ICJ) holds that it is nearly impossible to draw its exact boundaries.89 Nevertheless, it is settled that IHL applies to that territory that has come under the ‘effective control’ of the occupying forces, whatever size that may be and that, the exercise of control does not need to extend to the whole territory in
82 AP II, art. 2 (2).
83 Emily Crawford, ‘The Temporal and Geographical Reach of International Humanitarian Law’, (2016)
16/42 Sydney Law School, 7 https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2785420 accessed 14 July 2020.
84 Fleck (n 59) 61 & 172. 85 Tadić Decision, para 70. 86 Tadić Decision, para 69. 87 Tadić Decision, para 68. 88 Crawford (n 83) 14-16.
so far as foreign forces are able to exercise full authority.90 The effective control test is duly explained in Subsection iv.
For those NIACs, which are conducted solely within the boundaries of the affected state, IHL applies to the entire territory under the control of a party to the conflict.91 In the case of Transnational Armed Conflicts (TACs), which are fought beyond the territorial boundaries of one state, as discussed in Subsection v, one view holds that, even if the fighting crosses the borders of a state, IHL continues applying.92 Although this approach ensures high protection, it may have unrealistic effect as it creates a global battlefield, where IHL applies to multiple states even if not affected by the hostilities.93 A preferred view, supported by international jurisprudence, considers the nexus between the relevant law and the conduct at issue,94 with particular attention to the persons, objects and the like affected by the conflict and the perpetrator’s conduct.95
III. The Classification of Armed Conflict
This section analyses the rules on the classification of armed conflict and discusses those situations that have given rise to legal controversies in academic literature and international jurisprudence.
i. IAC
The starting point for the assessment of IAC is the definition set out in CA II GCs, according to which an IAC exists as soon as one state uses armed force against another
90 Tristan Ferraro, ‘Determining the Beginning and End of an Occupation under International
Humanitarian Law’, (2012) 94 (855) International Review of the Red Cross, 145
http://www.rulac.org/assets/downloads/Ferraro_-_Beginning_and_end_of_occupation.pdf accessed 14 July 2020.
91 Akayesu Judgment, para 635.
92 ‘International Humanitarian Law and the Challenges of Contemporary Armed Conflicts’, ICRC Report
of the 31st Conference of the International Red Cross and Red Crescent, at 9-10,
https://www.icrc.org/eng/assets/files/red-cross-crescent-movement/31st-international-conference/31-int-conference-ihl-challenges-report-11-5-1-2-en.pdf accessed 14 July 2020.
93 Ibid (n 92) 22.
94 Kayishema Judgment, para 176.
state.96 This definition embodies the first-shot theory, which was discussed in Subsection iii, and highlights two important requirements.
First, a state must use ‘armed force’, understood as the resort to traditional means and methods of warfare, such as the use of military helicopters and jetfighters, the deployment of armed troops or the use of artillery.97 Second, the resort to armed force must be directed at another state, meaning at the latter’s manifestations of its sovereignty, as armed forces, population, territory and infrastructure.98 CA II GCs does not require that the attacked state retaliates, which entails that unilateral use of force suffices to trigger LOIAC.99
Due to the application of the principle of separation between jus in bello and jus ad bellum, the reasons why a state resorts to armed force are irrelevant for the assessment of the application of LOIAC and the facts of the case are conclusive.100
While CA II GCs is the starting point, further rules apply to the classification of the following subcategories of IAC: Internationalization of NIAC and belligerent occupation. As the former requires the pre-existence of NIAC, it is wise to explore now the general rules on classification for NIAC.
ii. NIAC
NIACs are defined as conflicts ‘not of an international character’ which exist whenever there is ‘… protracted violence between governmental authorities and OAGs or between such groups within a state’.101 This definition applies to the notion of NIAC as enshrined in CA III GCs as well as in CIL.102 Additionally, NIACs may also be governed by AP II.103 As neither Syria nor Turkey are parties to AP II and the latter does not reflect CIL, it is not necessary to analyse its application any further.104
96 Tadić Decision, para 70.
97 Commentary GC I, para 223-225. 98 Ibid para 224.
99 Commentary GC I, para 223.
100 Fleck (n 59) 45 & 61. See also Commentary GC I, para 215-216. 101 Tadić Decision, para 70.
102 Sivakumaran (n 95) 155. 103 Sivakumaran (n 95) 164. 104 CIHL Study, xxxiv.
A conflict must reach a specific threshold to amount to NIAC, which draws the line between the latter and mere internal tensions, regulated by national and human rights law.105
First, the conflict shall involve ‘protracted violence’, which entails that it shall reach a certain level of intensity and duration,106 based on the number, duration and intensity of individual confrontations, the type of weapons and other military equipment used, the number of persons and forces involved in the fighting, the number of casualties and civilians fleeing the areas, the extent of material damage and the involvement of third parties and international organizations.107 The overall duration of the conflict plays a key role as it conveys the sense of magnitude of the conflict, as the latter’s length is expected to represent the extent of damage.108 However, no specific timeframe has been set, although it is generally accepted that 30 hours do not suffice.109
Second, the parties involved in the NIAC shall reach the sufficient level of organization that enables it to engage in large-scale violence of the intensity required by IHL and to enforce the arising obligations.110 This requirement is presumed in the case of states, unless the situation suggests otherwise, as in the case of state disintegration.111 Whereas, the assessment is more complex with regards to the OAG, as NSAGs often fall short of the threshold, especially in the early stages of the hostilities. The following factors are indicative: The command structure and logistical ability, the type of communication used, the division of role and responsibilities within the groups, recruitment and military training services provided by the group, control over the territory and the existence of internal regulationsand disciplinary procedures.112 When the group stems from dissident armed forces or its members have been involved in the conflict for a long time, it is expected to reach the threshold of organization more easily.113
Now that the theoretical framework applicable to IAC and NIAC was explored, it is possible to delve into their subcategories.
105 Tadić Opinion and Judgment, para 562. See also Fleck (n 59) 60. 106 ILA Report (n 109) 30.
107 Haradinaj et al. Judgment, para 49. See also Milosevic Decision, para 29. 108 Sivakumaran (n 95) 167.
109 Commentary 1973, para 133. 110 Sivakumaran (n 95) 176-179. 111 Sivakumaran (n 95) 170.
112 Limaj et al Judgment, para 113-117. 113 Sivakumaran (n 95) 172.
iii. Internationalization of NIAC
States have become increasingly involved in extraterritorial military operations, a practice that raises several controversies for the classification of armed conflict. On one side, a state intervenes in the territory of another state which resembles an IAC, on the other side, the latter state is involved in protracted violence with an OAG, which mirrors a NIAC. How do these situations classify? Two elements play a key role in this regard: Consent and ‘overall control’.
With regards to the former, it is settled that an intervention with consent does not internationalize the NIAC, which entails that the conflict continues being regulated by the NIAC legal regime.114 On the contrary, an intervention without consent, even when it solely aims to target the OAG, internationalizes the conflict and triggers LOIAC.115 In some circumstances, consent is straightforward as in the case of intervention upon invitation, for example the Russian military involvement in Syria.116 In other circumstances, states are more ambiguous in their intentions or opinions. However, it is generally accepted that state protests claiming a breach of international law are convincing signs of dissent.117
In so far as the conditions for the existence of NIAC remain fulfilled, the state intervention will give rise to a new conflict, with the result that the IAC runs parallel to the NIAC. Otherwise, the ongoing NIAC shifts into IAC.118
Another scenario in which a NIAC internationalizes is the case where a foreign state intervenes in the NIAC on the side of an OAG and exercises ‘overall control’ on it, to the extent that the OAG’s actions can be attributed to the state.119 In this scenario, the conflicts do not run parallel to each other, but they converge into one IAC.120
‘Overall control’ shall not be confused with ‘effective control’ which requires instead a complete dependence between the state and the OAG.121 While the concept of ‘effective control’ is often discussed with regards to state responsibility, ‘overall control’ 114 Commentary GC I, para 259-260.
115 Commentary GC I, para 262-263. See also Armed Activities, para 108, 146 & 208ff. See also Report
Lebanon A/HRC/3/2, 50-62. 116 Gill (n 6) 378-379 117 Commentary GC I, para 263. 118 Commentary GC I, para 260. 119 Commentary GC I, para 267 120 Commentary GC I, para 265-266. 121 Nicaragua Case, para 115.
is preferred in the context of classification of armed conflict and thus it is adopted in this thesis.122
A state exercises ‘overall control’ on an OAG when it can be demonstrated that there exists a relationship of subordination between the two,123 not only through the equipment and financing of the group by the intervening state, but also in view of the latter’s coordination of the OAG’s military activity.124
Common indicia of ‘overall control’ are the creation of the armed group by the outside state,125 the transfer of state officials to the armed group,126 financing127 and the direction, supervision, or command of the armed group by the outside state.128 Control may be exercised remotely, or it may be in addition to the presence of a state’s armed forces on the territory of the sovereign state.129 Furthermore, when the outside intervention is conducted by an adjacent state with territorial ambitions on the sovereign state, as territorial enlargement through the proxy forces, it may be easier to establish the threshold.130
iv. Belligerent Occupation
Pursuant to CA II GCs, a situation of belligerent occupation is a form of IAC and thus is subject to LOIAC, in particular to the law of belligerent occupation.131 The applicable law includes the relevant provisions of GCs, specifically Part III, Section III GC IV and those enshrined in the 1907 HRs, in particular art. 42-56 and AP I. Most of these provisions constitute CIL.132
122 Tadić Judgment, para 541. 123 Commentary GC I, para 267.
124 Tadić Judgment, para 131. See also Commentary GC I, para 269. 125 Nicaragua Case, para 94.
126 Tadić Judgment, para 150.
127 Naletilić & Martinović Judgment, para 199. 128 Tadić Judgment, para 151.
129 Commentary GC I, para 265. 130 Tadić Judgment, para 140. 131 Fleck (n 59) 47.
132 Trials of the major war criminals before the international military tribunal, Nuremberg, Vol. XXII,
The only provision that gives a general definition of belligerent occupation is art. 42 1907 HR.133 According to the latter and international jurisprudence, the conditio sine qua non for occupation is that the full or partial territory of one state is placed under the ‘effective control’ of a hostile army by military or other coercive means.134 International jurisprudence has developed a three-stage test to assess the threshold of ‘effective control.’135
First, foreign forces must be present on a territory of another state and their presence must be unconsented.136 The armed forces do not need to be everywhere on the territory, in so far as the extent of their presence is sufficient enough to enable the exercise of ‘effective control’.137 The fact that the status of the occupied territory is controversial in international law, as in the case of NIAC or state disintegration, does not affect the assessment. In fact, it suffices that the occupying state is not itself the rightful sovereign and has no right in international law to be present on that territory.138 Also, the lack of resistance to the occupation by the local government and population does not affect the qualification, as it is not considered a form of consent. In principle, no ‘genuine, valid and explicit’ consent can be inferred from actions taken in situations of military coercion.139 Finally, it is not required that the invasion and establishment of foreign forces give rise to open hostilities.140
Second, the occupying power must exercise ‘effective authority’, meaning that next to its presence on the territory, it must obtain such degree of control that enables it to exercise full authority on the territory.141 Common indicators are the state’s ability to establish a temporary administration over the territory, the issuance and enforcement of direction to the civilian population, the general surrender of the enemy forces excluding sporadic resistance, the capacity to send troops on the territory and make the authority felt, the capacity to replace the local authority with its own.142 An interesting situation is 133 Wall Case, para 78. See also Armed Activities, para 172–177.
134 Armed Activities, para 173. See also Fleck (n 59) 269. 135 Armed Activities, para 173.
136 Ferraro, ‘Determining the Beginning and End of an Occupation’ (n 90) 20. 137 Ferraro, ‘Determining the Beginning and End of an Occupation’ (n 90) 145. 138 Wall Case, para 95. Commentary GC I, para 314.
139 Ferraro, ‘Occupation and Other Forms of Administration of Foreign Territory’ (n 73) 21. 140 Commentary GC I, para. 288-289.
141 Commentary GC I, para. 302. See also Armed Activities, para 173. See also Ferraro, ‘Determining the
Beginning and End of an Occupation’ (n 90) 150.
that of ‘indirect effective control’, which occurs when the foreign state uses an OAG active on the territory of the occupied state to exercise ‘effective authority’ thereon.143 In these circumstances, IHL applies only if it can be demonstrated that the state exercises ‘overall control’ over the OAG,144 as discussed in Subsection iii, and that the latter wields ‘effective control’ over the territory on behalf of that state.145
Finally, for the hostile army to be capable to exercise full authority, the sovereign state must have lost its control and capacity to exercise governmental authority on the territory at issue.146 This could be for different reasons, including the case of ongoing armed conflict where the territory has fallen under enemy control.147
v. TACs
Contemporary NIACs often have a transnational nature as the hostilities span the territory of more than one state.148 This could occur in the case in which a state intervenes against an OAG that has been carrying out cross-border attacks from the territory of another state against the intervening state.149
These types of NIAC have become known as ‘TACs’ and their classification has raised several points of concern. On one side, one state intervenes on the territory of another state which suggests the internationalization of the conflict. On the other side, the state intervenes against the OAG resembling a NIAC.150
The transnational element of TAC is a precursor to the internationalization of the conflict in two circumstances. First, in case the conflict gives rise to interstate hostilities, as in the scenario in which the OAG is affiliated with the territorial state reaching the
143 Tadić Opinion and Judgement, para 584. See also Armed Activities, para 160 & 177. 144 Ferraro, ‘Determining the Beginning and End of an Occupation’ (n 90) 159. 145 Armed Activities, para 160 & 177.
146 Ferraro, ‘Occupation and Other Forms of Administration of Foreign Territory’ (n 73) 38. 147 Ibid (n 73).
148 Derek Jinks, ‘The Temporal Scope of Application of International Humanitarian Law in
Contemporary Conflicts’ (2003) HCPR, 8
https://securitypolicylaw.syr.edu/wp-content/uploads/2013/03/Jinks-Derek.Temporal-Scope-of-IHL-in-Contemporary-Conflicts.pdf accessed 14 July 2020.
149 Sylvain Vité, ‘Typology of armed conflicts in international humanitarian law: legal concepts and
actual situations’ (2009) 91 (873) Int. Rev. Red Cross, 90
https://www.icrc.org/en/doc/assets/files/other/irrc-873-vite.pdf accessed 14 July 2020.
