The Humanitarian Crisis In Syria And Iraq: A Direct Result Of Outdated Humanitarian Approaches To New Patterns.

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The Humanitarian Crisis In Syria And Iraq: A Direct

Result Of Outdated Humanitarian Approaches To New

Patterns

U

NIVERSITEIT VAN

A

MSTERDAM

LLM International and European Law: Public International Law Master Thesis

Abdullah Kassi Student n°: 10262091.

Email: abdullah.kassi@student.uva.nl

Supervision by MW. Prof. Dr. L. (Liesbeth) Zegveld 24th July 2020

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ii

ABSTRACT

This thesis discusses possible gaps in necessary International Humanitarian Law (IHL) applicability, with the emergence of the transnational armed conflict surrounding IS and an unfit dichotomy to address it. A proposal is made to close these gaps through an integrated approach in which the purpose of IHL takes the main stage, dictating IHL applicability. Through an analysis of the legislative history of IHL, the legislative intent is provided. Subsequently, through a comparison of ‘de-lege-ferenda’ with ‘de-lege-lata’, possible contradictions are highlighted. This thesis outlines the need to further facilitate the paradigm shift from State-sovereignty and military expediency to humanitarianism and advices for the elucidation of the material field of application and the dismantlement of the dichotomy.

Keywords: International Humanitarian Law, Armed conflict, Legal Reasoning, Legal Practice, IAC, NIAC, IS, ISIS, Islamic State, Counter-terrorism, Repatriation, formal dogmatic approach.

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AKNOWLEDGEMENT

I express my sincere appreciation to MW. Prof. Dr. L. (Liesbeth) Zegveld for her excellent supervision throughout this thesis. I would also like to express my appreciation to the University of Amsterdam for the superb master track in International and European Law. Finally, I express my sincere appreciation to my family and friends for their continuous support throughout my bachelor and master studies at the University of Amsterdam.

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I. INTRODUCTION: CONTEXT & METHODOLOGY

“The ‘distinction’ between international wars and internal conflicts is no longer factually tenable or compatible with the thrust of humanitarian law, as the contemporary law of armed conflict has come to be known.” 1

The challenging questions surrounding the International armed conflict (IAC) and non-international armed conflict (NIAC) dichotomy have already been dealt with prominently in the international legal literature. The discussion reveals a certain lack of overall perspective, fragmented in viewpoints. There is a certain hegemonic contestation, in which scholars present their partial view as the total view.2 Conflict dynamics of social framing and reconciliation, which are inseparable fromInternational Humanitarian law (IHL), and the legislative intent of IHL are not fundamentally considered. This thesis takes place in the legal doctrinal debate surrounding the dichotomy’s approach to modern transnational conflicts. Throughout this contribution, I address the dichotomy from an integrated approach, focusing on its possible gaps and its application on modern warfare which is characterized by a multifaceted complex nature. An integrated approach emphasizes the consideration of the realities on the ground to dictate IHL applicability; within a context of practical relevance and implementation of IHL which is mirrored in the legislative intent, to truly limit the impacts of war on society.

The conflict in Syria and Iraq is characterized by elements of both an IAC and a NIAC, blurring the dichotomy through linguistic ambiguity and vagueness of its criteria. I mean to explore this unclarity that possibly gives states a wide margin of discretion to disregard certain obligations, specifically the repatriation of Islamic State (IS) affiliates and family members. The application of certain IHL obligations, such as repatriation at the end of hostilities and specific due process rights when charged with war crimes, may be prone to selective enforcement due to a blurred material field of application of IHL during armed conflict, that is not delineated. This may have facilitated the humanitarian crisis in the region.

With this thesis, I aim to assess the impact of this perhaps outdated approach, on the policy of the coalition against IS in dealing with the conflict, through a casestudy and a legal literature review. I will further research how the dichotomy and the counter-terrorism framing used may facilitate the mis-mirroring of a conflict, resulting in not effectively addressing the crisis. Mis-mirroring implies the misdiagnosis of a conflict based on a wrongful assessment conducted through

1_{Reisman & Silk, Which law applies to the Afghan conflict?, Am. J. Int'l L. Vol. 82, 1988 p 465. As cited in:}

Stewart, Towards a single definition of armed conflict in international humanitarian law: A critique of

internationalized armed conflict, Int. Rev. Red Cross, Vol. 85, No. 850. 2003, p 313.

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2 unsuitable criteria. Consequently, a framework is adopted inadequate to deal with the impact of the conflict. A misdiagnosis is the result of running counter to the object and purpose of IHL.

I aim to contribute to the discourse of the phenomena of modern warfare and the traditional approach of the dichotomy thereon. Through research on the legislative history of IHL I ask which law the drafters of IHL sought to establish, otherwise the rationale or ‘de-lege-ferenda’, to reveal the initial object and purpose. Through a comparative analysis between lege-lata’ and ‘de-lege-ferenda’, I emphasize the importance of the practical implementation of IHL in accordance with its object and purpose. It is then that the unequivocal and objective delineation of the material field of application of IHL become apparent. Particularly, in the context of modern warfare in which the dichotomy blurs, the legislative intent becomes indispensable to prevent subjecting IHL applicability to the animus of any party. The hegemonic contestation is countered through a ‘de-lege-ferenda’ argumentation based on the practical implementation and the object and purpose of IHL. This contribution is meant as introductory and as such, a follow-up study in greater detail is in order to further solidify the findings and establish stronger empirical data.

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3

II. LEGISLATIVE HISTORY: PARADIGM SHIFT FROM

MILITARY EXPEDIENCY TO HUMANITARIANISM

Introduction

IHL evokes the ‘jus in bello’, otherwise the law of armed conflict (LOAC), to control the conduct of armed conflict and limit its destructive impact on society.3 IHL is described by the International Committee of the Red Cross (ICRC) as following: “It is a branch of public international law that consists of rules that, in times of armed conflict, seek — for humanitarian reasons — to protect persons who are not or are no longer directly participating in the hostilities, and to restrict means and methods of warfare.”4

Historically, with IHL, a paradigm shift was observed from sovereignty to humanitarianism in international affairs.5 Spaight spoke in 1911 of a compromise of humanitarian and military expediency and stated that: “[t]he general principle of war law is this — that no engine of war may be used which is (if one may use the term) supererogatory in its effect. The principle results from a compromise, the latter — for war is war — being the more powerful interest of the two.”6

Throughout history, we see an ethical code of chivalry and honourable conduct, implying certain mutual respect to be had; to this day, this code remains fundamental and is encompassed in IHL and reflected in several general principles.7 Legal literature identifies these fundamental

principles of IHL: the principle of distinction, the principle of military necessity, the principle of proportionality, and the principle of humanity. 8 These principles entail that military expediency must not go beyond which is “necessary for the realization of the purpose of war” and prohibit any unnecessary, indiscriminate and disproportionate violence to overpower an opponent.9 In this chapter I ask which law the drafters of IHL sought to establish, otherwise the ‘de-lege-ferenda’ and attempt to uncover the legislative intent. Subsequently, in the following chapters we will compare our findings with the application of the law that is, otherwise ‘de-lege-lata’, to further assess the paradigm shift.

3_{McCoubrey, International Humanitarian Law: Modern Developments in the Limitation of Warfare, 1998, p 1.} 4_{ICRC, Advisory Service On International Humanitarian Law, International Humanitarian Law - Answers to your}

Questions, 1 Oct 2002.

5_{Alexander, A Short History of International Humanitarian Law, Eur. J. Int. Law, Volume 26, Issue 1, 2015, p 109.} 6_{Spaight, War Rights on Land, 1911, p 75. As cited in: Alexander, (n 5), p 114.}

7_{Gill, Chivalry: A Principle of the Law of Armed Conflict?, in Armed-Conflict and International Law, 2013, p 33.} 8_{Online via ICRC, Fundamental principles of IHL.}

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4 1949

Many commentators propagated a wide applicability of LOAC in the drafting period, convinced that LOAC offered a more coherent protection than non-LOAC based responses to internal conflicts.10 States, however, disagreed and saw IHL applicability as a way of legitimizing a rebellion, fearing possible repercussions on their sovereignty.11 Pictet disagreed, stating that “the Article (Common article [CA] 3 ) in its reduced form does not in any way limit the right of a State to put down rebellion. Nor does it increase in the slightest the authority of the rebel party”.12 The International Committee of the Red Cross (ICRC) recommended in 1948, the applicability of the four Geneva Conventions in their entirety and in all cases of armed conflict, whether international or not. 13 However, most states rejected the proposals, and hindered a further shift to humanitarianism.14

With the possibility of the 1949 Diplomatic Conference becoming fruitless, ambiguity replaced definite terms determining the application of LOAC, to accommodate different State wishes.15 Subsequently, CA 3 was agreed upon and entailed a minimal guarantee of IHL to be respected, to respect State sovereignty “in the case of armed conflict not of an international character occurring in the territory of one of the High Contracting Parties”. CA 3 ensures humane treatment to ‘hors de combat’; what this exactly entails is not elaborated.16 The POW (or belligerent) status was of main concern to the involved states and therefore also excluded. In the words of the American delegate: “[e]very government had a right to put down rebellion within its borders and to punish the insurgents in accordance with its penal laws”.17 States were reluctant to agree, with what they perceived as a sacrifice of their sovereignty and held on to the freedom in dealing with internal conflicts. 18_{The scope for full IHL was thus restricted to states: “…all cases of declared war or of}

any other armed conflict which may arise between two or more of the High Contracting Parties, even if the State of war is not recognized by one of them. The Convention shall also apply to all

10_{Mclaughlin, Legal-Policy considerations and conflict characterisation choices at the threshold between Law}

Enforcement and Non-International Armed Conflict, 13. 2012 p10.

11_{Pictet, Commentaries on the Geneva Convention of 12 August 1949, Vol. III: Geneva Convention relative to the}

Treatment of Prisoners of War (Convention III), ICRC, Geneva, 1960, p 32.

12_{Pictet, Commentary on the Geneva Convention of 12 August 1949, Vol. I: Geneva Convention for the}

Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (Convention I), ICRC, Geneva, 1952, p 50.

13_{Pictet, (n 11), p 31.} 14_{Ibid, p 32.}

15_{Diplomatic Conference Convened by the Swiss Federal Council for the Establishment of International}

Conventions for the Protection of War Victims, Geneva, 21 April – 12 August 1949.

16_{Murphy, Will-o’-the-Wisp? The Search for Law in Non-International Armed Conflicts, 2012, p 16.} 17_{Final Record, vol. II-B, Summary Records, Joint Committee, 2nd Meeting, 12.}

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5 cases of partial or total occupation of the territory of a High Contracting Party, even if the said occupation meets with no armed resistance.”19

The dichotomy finds its origin after the signing of the Convention C IV’s final act in August 1949, which was originally only meant for the textual elaboration of CA 3.20 In the pre-Stockholm draft for the Geneva Conventions by the ICRC, the distinction of a “conflict not of an international character” was named. The origin lies with the drafters, who actually did not intend the creation of a new legal realm that would dictate IHL applicability.21 It was meant to fully incorporate NIACs under the IHL umbrella and not to differentiate, but rather encompass. Protection for all, after the detrimental impact of the Second World War on society, was the main idea behind the characterization of a NIAC. It surely did not imply to limit IHL.22

1974

The ICRC, in 1971 and 1972 again proposed drafts recommending full IHL applicability to a NIAC in the event of foreign intervention. The ICRC stated that “outside interventions by foreign states increased the scale of hostilities and the number of victims” and as such establishing full IHL was necessary. Thus, the realities on the ground dictate the applicable IHL framework. 23_However,

again to no avail. The ‘1974 Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law Applicable in Armed Conflicts’, was assembled in response to two additional draft protocols to the Geneva Conventions, drawn up by the ICRC.24 The conference was the scene of disagreement, and after four years, through concessions and the use of ambiguous words, a final draft was agreed upon.25_{Substantive provisions of Additional}

Protocol (AP) II to the Geneva Conventions on State sovereignty were removed, accommodating to the will of the states.26 Furthermore, the ICRC changed its rhetoric regarding the dichotomy and mentioned its necessity for “achieving a delicate balance between the needs of humanity and the security requirements of the State intending to take the requisite steps to maintain or re-establish

19_{CA to the four Geneva Conventions of 1949, Article 2.}

20_{Ciampi, History and International Law: An Intertwined Relationship, 2019, p 105.} 21_{Ibid. p 106}

22_{Ibid. p 103}

23_{ICRC, Report on the Work of the Conference of Government Experts on the Reaffirmation and Development of}

International Humanitarian Law Applicable in Armed Conflicts, 1971, p 290.

24_{IRRC, Diplomatic Conference on the Reaffirmation and Development of International Humanitarian Law}

Applicable in Armed Conflicts, No. 156, 1974.

25_{Alexander, (n 5), p 125.}

26_{Greenwood, A Critique of the Additional Protocols to the Geneva Conventions of 1949, 1999, p 7. As cited in:}

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6 order on its territory, draft Protocol II left intact the right of the constituted authorities to prosecute and sentence persons guilty of offences committed in [connection] with the armed conflict.”27 With the dichotomy, a concession was made and a halt was brought to furthering this paradigm shift to humanitarianism. Despite the concessions, many still opposed and deemed it too humanitarian, unreasonably limiting military action.28 The concessions made to achieve the 1977 protocols, in effect resulted in the denial of AP I29 being binding on non-signatories. Since it couldn’t be considered a codification of customary law due to the ambiguity, states questioned its binding nature.30 States also deemed AP I too humanitarian,31 with the US standing against it and president Ronald Reagan describing it as “fundamentally and irreconcilably flawed”.32 Through the APs to the Geneva Conventions, IHL adapted to new patterns; signifying the drafters intent to accommodate new realities and extend its protection.33

Conclusion

IHL was intended to provide the necessary framework to limit and mitigate the effects of war, in all circumstances. A State’s unwillingness to concede its sovereignty seems to be the main motive in the lack of furthering the paradigm shift towards humanitarianism in internal conflicts. The dichotomy accommodates various types of conflicts and is the result of concessions while trying to ensure certain humanitarianism is achieved. The dichotomy was initially established to settle the conflict between State sovereignty and humanitarianism. The State could then criminalize revolts and not adhere to many humanitarian obligations that would infringe State sovereignty. These would not reach the same level of severity and complexity as an interstate conflict would and many rules would not even be necessary.

Significant principles were introduced such as the obligation to enact domestic legislation concerning grave breaches of the convention listed in Article 147 of Convention IV, the concept of grave breaches itself, the commitment to investigate these crimes, and CA 3 protection.34 However, the paradigm shift to humanitarianism was not deemed finished since many of these principles would only apply in IAC situations; the end goal remained full IHL applicability and

27_{Official Records (1974–1977), vol. viii, CDDH/I/SR.22, p 202. As cited in: Zamir, Classification of conflicts in}

international humanitarian law: The legal impact of foreign intervention in civil wars, 2017, p 44.

28_{Roberts, The New Rules of Waging War: The Case against Ratification of Additional Protocol I, 26 Va. J. Int’l}

L (1985–1986) 109, p 146. As cited in: Alexander, (n 5), p 127.

29_{AP I to Convention I, 8 June 1977.}

30_{Parks, Air War and the Law of War, 32 A.F.L. Rev. 1, 1990, p 175. As cited in: Alexander, (n 5), p 126.} 31_{Green, The New Law of Armed Conflict, 15 CYIL, 3, 1977, p 40. As cited in: Alexander, (n 5), p 126.} 32_{Reagan, Letter of Transmittal, 81 A.J.I.L. 1987, 910, p 911.}

33_{Sandoz et al, Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August}

1949, xxix.

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7 regardless of classification. The sentiment in the early stages of the dichotomy is best revealed by James Brown Scott, who after attending ‘The Hague Peace Conferences’, which did not achieve a more humanization of war, stated: “The sweeping reforms of the enthusiast are brushed aside, and in their place tentative measures, timid measures perhaps, appear; but we must not forget that a step in advance is still a step in advance, and that the failure of today is the success of the morrow.”35

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8

III. APPLICABLE LEGAL FRAMEWORK

Introduction

IHL distinguishes two types of armed conflicts, that is IACs and NIACs. This chapter provides a brief overview of the dichotomy, and the criteria for both categories. In this chapter I emphasize the law as is, otherwise ‘de-lege-lata’, and how the criteria separate the two types of armed conflicts.

Non-international armed conflict

NIACs are ambiguously defined in CA 3 as “conflicts not of an international character”. The concept of internal disturbances, is mentioned in the ICRC Commentary to the AP II as “the lower threshold of the concept of armed conflict”.36 The evolution into a NIAC is difficult to establish due to ambiguity, the many factors37 and the unconventional ways modern wars are fought. Firstly, an armed conflict has to be established.38 The guidance, as affirmed in prosecutor v. Tadić, is that an armed conflict is established “whenever there is a resort to armed force between States or protracted armed violence between governmental authorities and organized armed groups or between such groups within a State…”.39

CA 3 defines a NIAC as an armed conflict waged between the State and non-State armed groups or between the groups themselves in the territory of one of the High Contracting Parties.40 The International Criminal Tribunal for the former Yugoslavia (ICTY) reaffirmed these conditions, stating that a non-State armed group must be sufficiently organized and that a conflict requires a minimum level of ‘intensity’, not requiring large scale unrest comparable to civil war.41 These

36_{Sandoz et al, (n 33), p 1354.}

37_{Crucial factors include: “the number, duration and intensity of individual confrontations; the type of weapons and}

other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces partaking in the fighting; the number of casualties; the extent of material destruction; and the number of civilians fleeing combat zones.”. See Prosecutor v. Haradinaj et al., ICTY Trial Chamber I, , Case No. IT-04-84-T, Trial Judgment, 3 April 2008, para 49.

38_{Gill & Fleck, (ed.), The Handbook of the International Law of Military Operations, 2nd ed. 2017, Ch. 3, section}

3.01, pp 35.

39_{Pictet, (n 11), p 23; ICTY, Prosecutor v Tadić, ICTY Appeals Chamber, Decision on the Defence Motion for}

Interlocutory Appeal on Jurisdiction, Case No. IT-94-1, 2 October 1995, para 70

40_{Pejic, The Protective Scope of Common Article 3: More than Meets the Eye, 93 Int. Rev. Red Cross 3, 2011, p 3.} 41_{ICTY, ICTY, Prosecutor v. Tadić, Case No. IT-94-1-T, Appeal Judgement 7 May 1997, para 561-568.}

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9 elements trigger the applicability of LOAC and distinguish a NIAC from internal disturbances,42

which traditionally belong under the State's sovereignty, prone to criminalization and which do not warrant IHL applicability.

Internationalized non-international armed conflict

When the armed opposition is directed by an involving State, the armed conflict is deemed international, constituting an ‘internationalized’ NIAC. A non-State actor (NSA) acting in “complete dependence” to the State, is to be considered a ‘de jure’ organ of that state.43_{Article 8}

of the Draft Articles on Responsibility of States for Internationally Wrongful Acts (ARSIWA), states that a “person or group of persons … acting on the instructions of, or under the direction or control of, that State in carrying out the conduct” is to be considered a de facto organ of the State.44

The Commentaries to the article clarify that “a real link between the person or group performing the act and the State machinery” must be established.45 When complete dependency is not proven, the legal responsibility of a State can still be established through the ‘effective control’ test to determine sufficient direction of a NSA.46 In the Nicaragua case, the Court requires a State to have “such a degree of control in all fields so as to justify treating the contras as acting on its behalf”. Despite the US’s role of ‘planning, direction and support’ in the Nicaraguan rebellion, it was not deemed sufficient.47

The ICTY labelled the effective control test, used by the ICJ in the Nicaragua case, too restrictive and discarded it for its ‘overall control’ test; only for the ICJ to reaffirm its ‘effective control’ test in the Bosnian Genocide case, years later. Effective control requires an influence over a specific act, in contract to overall control requiring control over a group.48 The effective control test remains the default under international law, especially with the temporary nature of the ICTY and its specific goal in dealing with the Balkan conflict.49 Trough attribution and international responsibility, a NIAC can internationalize. However, the threshold is considerably high, requiring compelling supporting evidence.50

42_{Acts such as “banditry, riots, isolated acts of terrorism or similar situations”. See ICTY, (n 37), para 38.} 43_{ICJ, Nicaragua v USA, Judgment, 27 June 1986, Merits, ICJ Reports 1986, para. 109; ICJ, Bosnia and}

Herzegovina v. Serbia and Montenegro, Judgment, 26 February 2007, ICJ Reports 2007, paras 391–395.

44_{International Law Commission, Draft Articles on Responsibility of States for Internationally Wrongful Acts,}

November 2001, Supplement No. 10 A/56/10, chp.IV.E.1

45_{See UN, Draft Articles on Responsibility of States for Internationally Wrongful Acts, with Commentaries, adopted}

by UNGA Res. 56/83, 12 December 2001 (Draft Articles) p 47.

46_{ICJ, (n 43), 1986, paras 105 – 115.} 47_{Ibid, para 86.}

48_{ICJ, (n 43), 2007, para 400.}

49_{James Crawford, State Responsibility: The General Part, 2013, p 156.}

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10 International armed conflict

We speak of an IAC whenever there is a “resort to armed force between States”51 and pursuant to CA 2 (1), no formal declaration of war or recognition of a State of war by any of the parties is warranted.52 In addition, IACs do not require any triggering of a threshold of violence. Thus, only states or High Contracting Parties can take part in such a conflict. An armed conflict is established when a dispute arises between states that leads to the intervention of armed forces.53 It is customary international law that defines statehood.54 Armed conflict is, in theory, unbound from the will of the parties, but rather dependent on the realities on the ground through the act of resorting to arms55 “even if one of the Parties denies the existence of the State of War”.56

The existence of the use of arms between two states is enough, and regardless “how long the conflicts last, or how much slaughter takes place.”57_{In contrast to NIACs, this low threshold of}

violence implies that armed attacks are sufficient for full IHL applicability. 58 However, sporadic incursions individually, which have even led to death and destruction, haven’t been treated as armed attacks in State practice.59 Nonetheless, a strong view in international law pertains to the ‘intent’ dictating the existence of an armed conflict.60_{Through a revelation of clear hostile intent,}

formed before and united with the act, an armed conflict is assumed.

Additionally, an accumulation of frontier incidents with an aim of destabilizing a victim State could also constitute an armed attack within the meaning of Article 49 (1) AP I; pursuant to the stance taken by the ICJ in the Case Concerning Oil Platforms on the establishment of an armed attack through cumulative events.61 As Gill also notes: “if such low-scale violations of a State’s territory were repeated over a period of time,” “such actions could cumulatively constitute an

51_{ICTY, (n 39), para 70; Solis, (n 34), p 160.}

52_{Cf. CA 2 of the GC, 1949 and provisions of AP1; Fleck, The Handbook of International Humanitarian Law,}

2013, p 44.

53_{Pictet, ICRC Commentary on the Geneva Conventions of 12 August 1949 – Convention I p 32; Vol. 2: for the}

Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea, ICRC, Geneva, 1960 (Convention II) p 28; Convention III p 23; Vol. 4: Geneva Convention relative to the Protection of Civilian Persons in Time of War, ICRC, Geneva, 1958 (Convention IV) p 20.

54_{Online via RULAC, International Armed Conflict, Geneva Academy, 30 August 2017.} 55_{Solis, (n 34), p 161.}

56_{Pictet, Convention III, 1960 pp 22-23.} 57_{Pictet, Convention I, 1952, p 32.}

58_{Kleffner, Human Rights and International Humanitarian Law: General Issues, in Gill., Fleck., The Handbook Of}

The International Law Of Military Operations 35, 2015, pp 44–45.

59_{Arimatsu & Choudhury, (n 50), p 3; Greenwood, Scope of Application of Humanitarian Law, in Fleck, The}

Handbook of International Humanitarian Law, 2008, p 81.

60_{Solis, (n 34), p 162.}

61_{ICJ, Islamic Republic of Iran v. USA, Judgment, 6 November 2003, ICJ Reports 2003, para 64: ‘[e]ven taken}

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11 armed attack.”62_{With a demonstration of manifest hostile intent and repeated frontier incidents,}

an armed attack by an accumulation of events is established, revealing the presence of an armed conflict. The conduct of future military operations is then circumscribed by international law, to include IHL in full.

Moreover, “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 […]” could also constitute as IACs.63 By means of a unilateral declaration, a NSA considered to be in a national liberation struggle against a State party to AP I, is authorized by Article 96 (3) AP I and may deem the Geneva Conventions and the APs applicable to the conflict. However, even if a proto-state such as IS would appeal on this option, the realization would prove difficult. Many states have made declarations pertaining to Article 96 (3) AP I. The UK and France for example, have reserved the right of recognition. Others demand the recognition by the relevant regional intergovernmental organization. Thus, only a recognized NSA can claim the full obligations embodied in an IAC in a self-determination conflict.64 Again, the classification is dependent on the animus of states, whether they recognize a national liberation as such. The subordination of a people could be the result of a regional power dynamic and by subjugating the NSA to the recognition of that same power, article 96 (3) AP I holds no real weight. Full IHL applicability through the road of self-determination is, in my view, hindered by the animus.

In addition, a specific declaration of intent by the authority representing the ‘peoples’ is required.65 IS claims a position of legitimacy as it fights, what it perceives to be, an illegal occupation by US forces since the 2003 invasion of Iraq. It views the regime in Syria as a racial regime suppressing the majority adherents to Sunni Islam. However, it is highly unlikely that IS would call on the International community through such a declaration since it rejects any law besides its orthodox Islamic law.

Conclusion

In conclusion, the material field of application of IHL is vaguely delineated. States seem to have a wide margin of appreciation in classifying a conflict. Concerning IACs, theoretically it is quite clear, as long as two states enter in an armed conflict with each other, an IAC is established. However, through a fragmented interpretation by states, viewpoints differ concerning the beginning of an IAC.

62_{Gill, The Forcible Protection, Affirmation and Exercise of Rights by States Under Contemporary International}

Law, NETH. Y.B. INT’L Law, 1992, pp 105, 111.

63_{AP I article 1(4).}

64_{Gaudreau, The reservations to the Protocols additional to the Geneva Conventions for the protection of war}

victims, Int. Rev. Red Cross, No. 849, March 2003, p 147.

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12 The low threshold of violence for IACs (or the lack thereof) implies that the realities on the ground are somewhat disregarded. Instead, the identity of the actors dictates which framework within the dichotomy applies. Thus, this chapter introduces the complexities of the dichotomy which, for now, seem to enable the animus of parties to dictate IHL applicability. The ‘de-lege-lata’ seems, for now, ill suitable to mirror conflicts for IHL applicability; since the object and purpose plays no role in the dichotomy. The question now is, how this uncertainty is dealt with in practice.

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IV. DIAGNOSIS OF THE CONFLICT IN IRAQ & SYRIA.

DETERMINING THE LEGAL CLASSIFICATION: IAC, NIAC

OR A BLURRED DICHOTOMY.

Introduction

According to Aldrich: “Reality can be messy, and armed conflicts in the real world do not always fit neatly into the two categories”.66With the previous chapter revealing a blurred

dichotomy and uncertainty concerning the criteria for classification, the core question rises if the theoretical wide margin of appreciation states have in classifying a conflict, is mirrored in practice. As Clapham asks: “[s]o if the law applies should we worry about the attitude of the government?”67

This chapter seeks to clearly assess how the conflict in Syria and Iraq fits within the current dichotomy, and the way the uncertainty of a blurred dichotomy is addressed in practice.

Furthermore, this chapter will explore the suitability of the dichotomy to provide for an accurate assessment of conflicts to accurately mirror the conflict and subsequently, enable the needed tools of IHL to limit its impact on society. The core question is whether the ‘de-lege-lata’ truly goes against the object and the purpose of IHL.

Iraq’s consent

The exceptions to the principle of non-intervention relied on under international law are acting on the base of the inherent right of self-defence under article 51 of the United Nations (UN) Charter, the maintenance or restoration of international peace & security under article 42 of the UN Charter, and the implicit authorization under UN Security Council (UNSC) Resolutions.68 Additionally, State consent would also provide an exception to the prohibition of the use of force.69

A strong view, reflected in case law is that a non-consensual intervention of a State in the territory of another State dictates that full IHL is to be applied,70 irrespective of defensive measures taken

66_{Aldrich, The laws of war on land, Am. J. Int'l L., Vol. 94, 2000, p 62.}

67_{Clapham, Human Rights Obligations of Non-State Actors in Conflict Situations, Int. Rev. Red Cross 491, 2006, p}

510.

68_{Article 51 of the UN Charter permits self-defence only “if an armed attack occurs.”} 69_{ICJ, (n 43), 1986, para 246.}

70_{Sassòli, Transnational Armed Groups and International Humanitarian Law, Hpcr Occasional Paper Series, 2006, p}

4-5.; Fleck, Non-International Armed Conflicts, in The Handbook Of International Humanitarian Law, 2013, pp 584; As cited in Gill, Classifying the conflict in Syria, Int. Law Stud., Vol. 92, 2016, p 367.

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14 to oppose this intervention;71_{“even if the State of war is not recognized by one of them” and even}

“even if the said occupation meets with no armed resistance.”72_{Concerning Iraq, its initial internal}

disturbances evolved between IS and the Iraqi government forming a NIAC.73 With the high degree of organization of IS and the intensity of the fighting, a NIAC was undoubtedly established.74 The UN commission considered IHL applicable to IS and spoke of its violation thereof as early as 2013. 75_{IS organized in well-equipped units, and through a war of attrition}

slowly cornered the cities from the surrounding desert wastelands and eventually conquered vast Iraqi territory. The conflict reached high intensity and revealed a well-organized and highly efficient insurgent army. Pursuant to CA 2, paragraph 2, a lack of consent would establish an IAC, irrespective of violence.76 Despite the intensity of the conflict and a strong coalition consisting of dozens of states, Iraq’s consent to the intervention was deemed crucial in the denial of the existence of an IAC.

IS’s statehood

IS is not viewed as a State under international law, thus the internationalizing of conflict through its statehood is denied. Based on the Montevideo criteria, an entity is a State if it has a permanent population, a defined territory and an (effective) government. 77 Subsequently, the capacity to enter into relations with other states and the recognition by other states, as additional criteria is still under debate in legal literature.

The constitutive theory, backed by State-practice, implies that statehood, self-determination and belligerency, all depend on the recognition by the international community.78_{Many authors see}

the establishment of relationships with states as a condition for statehood. Others see external sovereignty through recognition as crucial.79 Some scholars, uphold the declaratory theory, dictating statehood through the Montevideo criteria.80 Based on this theory recognition entails the

71_{Gill, (n 70), p 366.} 72_{CA 2.}

73_{ICRC, Annual Report 2014 - Antananarivo (regional), 9 June 2015, p 480.} 74_{Gill, (n 70), p 374.}

75_{Human Rights Council, Report of the independent international commission of inquiry on the Syrian Arab}

Republic, UN Doc. A/HRC/25/65, 12 February 2014, pp 7–8 (paras 25, 28, 33), p 9 (para 41), p 10 (para 50), p 11

(paras 60–1), p 12 (paras 70–1), pp 13–14 (paras 79, 80, 84), p 18 (paras 119–20, 123–6). As cited in Koutroulis,

The Fight Against the Islamic State and Jus in Bello, Leiden J. Int. Law, Vol. 29, No. 3, 2016, p 835.

76_{CA 2.}

77_{Online via RULAC, International Armed Conflict, Geneva Academy, 30 August 2017.}

78_{Worster, Law, Politics, and the Conception of the State in State Recognition Theory, 27 B.U. INT'L L.J. 115,}

2009, p 118.

79_{Caspersen & Stansfield (ed.), Unrecognized States in the International System, 2011, p 130.}

80_{Meijknecht, Towards International Personality: The Position of Minorities and Indigenous Peoples in}

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15 mere ability for interstate interaction and can, as such, be beneficial, but it should not dictate statehood.81 A view within the school pertains to the complete irrelevance of recognition.82 In the words of Alan, who argues that: “[I]t is not a provision of international law which has to be satisfied for a State to be ascribed sovereign status (…). Thus, the position of international law in relation to sovereignty [meaning: the existence of States] is that it presupposes it. International law makes only sense on the assumption that there are sovereign states to which it can be applied.” 83

Article 3 of the Montevideo Convention on the Rights and Duties of States 193384 (Montevideo Convention) dismisses the constitutive theory: “The political existence of the State is independent of recognition by the other states.” Article 1 of Brussels Resolution Concerning the Recognition of New States and New Governments of the Institute de Droit International states, pertains recognition as having a mere declaratory effect.85_{However, despite this codification of the}

constitutive theory, there is still no consensus on the criteria for statehood.86

With IS, we witnessed the emergence of an impressive proto-state,87 which seems to fulfil the Montevideo criteria, having major State like features. IS controlled a vast territory, with reports of approximately eleven million people under its control.88 The UN High Commissioner for Refugees (UNHCR) stated that IS: “seeks to subjugate civilians under its control and dominate every aspect of their lives through terror, indoctrination, and the provision of services to those who obey”.89 IS went beyond controlling the territory and formed an effective government in an attempt to control every public aspect of life of its citizens. IS provided an effective general police force for population control, a strong social control system for complete obedience to its orthodox readings of Islamic law, and enforced through its morality police or Al-Hisbah, accompanied by the all-women Al-Khanssaa Brigade. Public facilities such as hospitals, courts, and schools were all provided and run by IS.90 IS organized itself through ministries and was on its way to implement its own currency to solidify its power. It was in the early stages of forming an independent economy through taxation and its control of major Iraqi and Syrian oil reserves. In my view, IS

81_{Horbach, Lefeber & Ribbelink (red.), Handboek internationaal recht, 2007, p 179.} 82_{Ibid. p 178.}

83_{Alan, Sovereign Statehood: The Basis of International Society, 1986, p 40.}

84_{The Montevideo Convention on the Rights and Duties of States, 26 Dec. 1933, 165 LNTS 19.} 85_{Am. J. Int'l L, Vol. 30, No. 4, Supplement: Official Documents, Oct., 1936, p 185.}

86_{Worster, (n 78), p 158.}

87_{The term ‘proto-state’ has been used as the denomination of a secession movement, which declares independence;}

see Griffiths, Ryan, Age of Secession: The International and Domestic Determinants of State Birth, 2016, p 53.

88_{Jones, Dobbins & Byman, et al., Rolling Back the Islamic State, RAND Corporation, 2017.}

89_{UN Office of the High Commissioner for Human Rights (OHCHR), Rule of Terror: Living under ISIS in Syria,}

UN Doc., 14 Nov. 2014, p 13.

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16 went beyond a basic “guerrilla governance”91_{and established a proto-state as you will, and based}

on reports was, “more stable and more flexible than it appears from the outside”.92

In the legal literature, we see these opposing views, revealing an uncertain field. However, the right to statehood based on the Montevideo criteria, is contested as being reflective of customary law. Furthermore, international law lacks mechanisms to determine if an entity has fulfilled the Montevideo criteria.93 In State-practice, we see recognition as the crucial element for statehood, destroying any possibility to achieve full IHL applicability through this route of statehood since IS has steadily rejected the rules of international society deemed conflicting with its orthodox interpretation of Islamic law, embraced terrorist tactics and rejected the international community. No State would recognize IS’s statehood regardless.

Continuation in Syria of the 2003 IAC in Iraq

Despite the US’s claim of victory ending the IAC between the Iraqi State and the US, remnants of the previous Iraqi government continued the war through an insurgency. In the early stages of the conflict, former Iraqi officials continued the war through many smaller groups, such as Al-Qaeda in Iraq, the 1920s Revolution Brigade, Jaysh al-Mujahideen and the Islamic Army of Iraq.94 With the conflict never subdued and a continuation of armed attacks from the former government, it is arguably a continuation of the IAC. Every small group engaging in this insurgency would be deemed to be in a NIAC parallel to the 2003 IAC.95 The majority of the top leadership of IS was formed by previous Iraqi officers. Eight of the thirteen that formed the leadership of IS between 2010 to 2014 were former Iraqi Baath officials.96_{Haji Bakr, a former Colonel in the Iraqi}

Revolutionary Guard and former Baathist, is even deemed as the architect of IS.97

Among others, Dinstein argues that the conflict with the former Iraqi government regime is a continuation of the original IAC, while any other conflict with other groups the conflict helped give rise to, constitutes a NIAC parallel to the IAC and “As long as US troops persist in waging combat operations against them, the hostilities constitute an international armed conflict.”98 Sufficient nexus is then arguable to provide for full IHL applicability. Thus, the coalition would

91_{The term ‘guerrilla governance’ refers to basic rebel governance; see Wickham-Crowley, Tymothy, The Rise (and}

Sometimes Fall) of Guerrilla Governments in Latin America, Springer, Sociological Forum, Vol. 2, No. 3, 1987.

92_{Reuter, The terror strategist: Secret files reveal the structure of Islamic State, Der Spiegel, 18 April, 2015.} 93_{Horbach, Lefeber, & Ribbelink (Eds.), (n 81), p 179.}

94_{Karam, The Multi-faced Sunni Insurgency: A Personal Reflection, Civil Wars 1, Mar 2007, pp 87-105.} 95_{E.g. Dinstein, Terrorism and Afghanistan, intl L Studies, 2009, p 51-52.}

96_{Tonnessen, Heirs of Zarqawi or Saddam? The relationship between al-Qaida in Iraq and the Islamic State,}

Perspectives on Terrorism, vol. 9, no. 4, 2015, p 54.

97_{Reuter, (n 92).}

98_{Dinstein, Concluding Observations: The Influence of the Conflict in Iraq on International Law, in The War In}

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17 fall under this IAC in its aiding of the newly installed Iraqi government facilitated by the interventionist US State. Despite the UNSC reiterating the US’s rhetoric, and claiming an end to the belligerent occupation of Iraq by the US in 2004,99 “the war has gone on”.100

Syria and its consent

On the base of the previous paragraphs, the existence of an IAC is arguable in Iraq, thus the conflict in Syria is arguable the continuation of this same IAC. However, a more solid standing under International law is necessary to establish an indubitable IAC. Our core question is whether an IAC is established between Syria and the coalition, and whether this provides for a sufficient nexus to incorporate the existing NIAC. Thus, achieving full IHL applicability.

Iraq’s consent was the crucial element in the denial of an IAC in Iraq; With the consent of Iraq, the conflict remains a NIAC and is not internationalized.101 Concurring with the Iraqi NIAC, Syria witnessed its own NIAC between IS, rebel groups, Kurdish secession movements, and the Syrian government. The intervention by the coalition in Syria was non-consensual, again possibly establishing an IAC between the Syrian government and the anti IS coalition. Such consent was given to Russia to aid the Syrian government in its NIACs.102 Russia, similar to the US in Iraq, joined these pre-existing NIACs, with its consensual intervention.

The lack of formal objection by the Syrian government to the intervention against IS could be seen as passive consent, derived from the Armed Activities decision, in which the ICJ inferred a host state’s consent to an intervening State from its lack of objection.103 To a certain extent the coalition was even welcomed to fight IS, which was making significant progress in ousting and defeating the Syrian government. However, even with a potential objection to the coalition’s intervention, Syria’s consent could be inferred from its inability to stop IS from planning and carrying out attacks throughout the world. The U.S., leading the coalition, has used this so-called unwilling or unable doctrine, despite it being contested in legal literature.104

99_{UNSC, 1546, UN Doc. S/RES/1546, 8 June 2004. The realities on the ground would argue against this}

declaration. US troops were still occupying major Iraqi cities and were still engaged with remnants of the Iraqi Baath government which had reorganized in an insurgency. In the words of Dinstein: “Like war, an occupation is not over until it is over.” Dinstein, (n 95), p 487.

100_Ibid.

101_{Kleffner, (n 58), pp 41–42.}

102_{BBC News, Russia Joins War in Syria: Five Key Points, BBC Middle East, October 1, 2015}

103_{Steenberghe, From Passive Consent to Self-Defence after the Syrian Protest against the US-led Coaition, EJIL:}

TALK! Oct. 23,2015; ICJ, Dem. Rep Congo v. Uganda, 168, December 19 2005, ICJ Reports 2005, para 46.

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18 Concerning the extraterritorial exercise of Iraq's right to collective self-defence, the view exists that the coalition’s intervention in Syria was a continuation of the NIAC against IS in Iraq.105 Gill points out that a non-consensual intervention out of self-defence, if exclusively against IS, necessary and proportionate, would not constitute a sufficient violation of Syria’s territorial sovereignty. Self-defence would then negate a possible violation and prevent an IAC.106 However, in the Wall advisory opinion, and in the Armed Activities decision, the ICJ held that self-defence is to be restricted to attacks by states.107 Consequently, the Court concludes in the Armed Activities decision that a State intervening must demonstrate that it had been a target of an armed attack by the host State or attributable to the host State. Others argue that irrespective of ‘jus ad bellum’ being accepted through other ways; the non-consensual character of the intervention remains decisive. The right of self-defence against IS will not deter full ‘jus in bello’.108_{The absence of}

such consent should then establish an IAC in Syria; even if prompted by a mere non-consensual military cross-border passing, as was the case with Turkey’s raid in northern Iraq.109

However, some scholars see military confrontation or a direct opposition between states, besides the non-consensual character, as an additional crucial requirement. 110 However, this view fails to consider an indirect strategic approach states may uphold in contemporary proxy warfare. The coalition has provided rebels financial assistance, military training and intelligence in their campaign against IS. However, reports strongly indicate the redirection of the aid against the Syrian government.111 Establishing responsibility and an IAC through the ‘effective control’ test may, as previously stated, not be suitable to provide a fallback due to the complexities surrounding the test. Through an overt direction of influence, the coalition can oppose the Syrian government while avoiding establishing an IAC.112_{Some authors insist that the coalition’s intervention did not}

constitute an IAC since IS was solely targeted. The targeting of key government assets such as critical infrastructure is then crucial in establishing an IAC, and according to Gill only if these assets are under the full control of the State.113 With this reasoning the coalition could level IS occupied Syrian cities, and still deny the existence of an IAC. The default view now in international law, is that with a non-consensual intervention a NIAC is established, save for specific reasons internationalizing the conflict; despite scholars and treaties reflecting opposing views.

105_{Koutroulis, (n 75), p 841.} 106_{Gill, (n 70), p 367}

107_{ICJ, Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory, Advisory Opinion,}

July 9 2004, 136, paras 139, 194; ICJ, (n 103), paras 146–47, 222–23.

108_{Stewart, The UN Commission of Inquiry on Lebanon: A Legal Appraisal, 5 J. Int. Crim 1039, 2007, p 1042-3.} 109_{Human Rights Council, S-2/1, UN Doc. A/HRC/3/2, 23 November 2006, paras 59, 62.}

110_{For example Hoffmann, Squaring the Circle? International Humanitarian Law and Transnational Armed}

Conflicts, in Matheson & Momtaz, (eds), Rules and Institutions of International Humanitarian Law Put to the Test of Recent Armed Conflicts, 217, 2010, pp 253–4. As cited in Koutroulis, (n 75), p 837.

111_{Barnard & Shoumali, U.S. Weaponry Is Turning Syria Into Proxy War With Russia, NYT, Oct. 12, 2015.} 112_{Koutroulis, (n 75), p 837.}

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19 However, this only becomes relevant if the establishment of an IAC between the coalition and Syria would provide a sufficient nexus to the NIAC with IS and full IHL becomes applicable. Concerning the complexities and intertwining of the different conflicts, each impacting each other’s societal goal, in my view, sufficient nexus would be established, rendering full applicability of IHL in Syria and perhaps even in Iraq.

Conclusion

The emergence of new patterns in modern warfare has revealed the dichotomy unsuitable to mirror the realities on the ground to dictate IHL applicability. Despite the costs, mis-mirroring of a conflict may have on society, an outdated dichotomy remains. State-practice and many scholars uphold the identity of the parties as decisive in dictating the classification of conflicts.114_{A mere}

violation of sovereignty can constitute an armed attack and provide for full IHL applicability, while a full-scale invasion and arming and embedding rebel groups to counter IS, is denied such IHL application. States can thus, wage devastating wars against proto-states with limited IHL applicability to provide for necessary interference on military expediency to limit the impact of war on society.

Viewing the conflict in Iraq, the ill suitability of the element of statehood to mirror realities on the ground and assess the need for full IHL became clear. The territory under IS had an estimated population of eleven million at risk; the suffering that would ensue was obvious. Yet, IAC classification is subjected to the element of statehood which in turn is subjected to the animus of the International community through recognition. Again the animus, rather than realities, dictate the relevant applicable law. Selective enforcement of applicable IHL seems possible; and thereby acting contrary to the rationale of IHL. Concerning Iraq, I conclude that the dichotomy has failed to establish the appropriate IHL. Through denial of the continuation of the Iraqi IAC and IS’s statehood, and through Syria’s lack of active opposition to the intervention, the full applicability of IHL in the war was prevented. Thus, the only undoubtedly established conflict is a NIAC between the coalition and IS.

The legal literature reveals uncertainty in the existence of an IAC between the coalition and Syria. However, further research is necessary for the question if an IAC would even provide for a stronger nexus to the existing NIAC to provide for full IHL applicability between the coalition and IS. Many views exist on whether the conflict against IS has initiated an IAC. Which view is to be upheld is not definitively settled under international law, leaving IHL applicability uncertain in desperate situations.

There is a great scope for states to challenge IAC characterization and prevent full IHL applicability. This uncertainty has even led to a proposal ‘de-lege-ferenda’, to consider the conflict

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20 in Syria as a ‘hybrid’, neither IAC nor NIAC.115_{What is the applicable rule then? Cogent}

clarification concerning the status of IHL in these critical conflicts, is much needed. Nonetheless, states remain fixed upholding the dichotomy. For now, the dichotomy remains, despite uncertainty in the classification of conflicts with state-sovereignty held high. However, the changes in the field of war and the realities on the ground have revealed the faults of the dichotomy and a need for the delineation of the material field of application.

115_{Schöndorf, Extra-State Armed Conflicts: Is There a Need for a New Legal Regime?, 37 N.Y.U. J. Int'l L. & Pol.,}

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21

V. IMPLICATIONS OF THE DICHOTOMY

Introduction:

According to Detter: “It is difficult to lay down legitimate criteria to distinguish international wars and internal wars and it must be undesirable to have discriminatory regulations of the Law of War for the two types of conflict.”116_{With the previous chapters revealing a blurred dichotomy and}

uncertainty concerning the criteria for classification the core question rises, as asked by Clapham: “[s]o if the law applies should we worry about the attitude of the government?”117

In this chapter, I briefly address the scope or adequacy of IHL rules and the possible implications the dichotomy has had on Iraq and Syria, to assess the desirability of discriminatory regulations in armed conflicts. The applicable law in reference to the conflict against IS is addressed and the way the dichotomy deals with the transnational character of the war.118 Problems can arise in ascertaining which provisions under IAC are reflected in customary international law, with states even denying their existence; such uncertainty gives rise to the question if the gaps in the dichotomy are truly closed by customary law. Furthermore, the adequacy of UNSC resolutions in resolving the mis-mirroring of conflict is assessed.

Implications of an IAC, treated as a NIAC

The establishment of an IAC gives rise to the full application of the whole body of IHL; various treaties and conventions such as ‘The Hague Conventions of 1907’ addressing methods and means of military combat and conduct, the four Geneva Conventions and trough ratification, its protocols.119 Thus, a comprehensive regime is provided for the protection of civilians and mitigated military expediency through the introduction of such principles as POW status, combatant status, and the grave breaches system pursuant to CA 2 (1). The IAC regime demonstrates clear delineated obligations, as opposed to NIACs.

The establishment of a NIAC gives rise to the mere application of IHL within the meaning of CA 3, providing the most basic humanitarian norms.120 These are supplemented by AP II if certain

116_{Detter, The Law of War, 2002, p 49.}

117_{Clapham, Human Rights Obligations of Non-State Actors in Conflict Situations, Int. Rev. Red Cross 491, 2006, p}

510.

118_{Bartels, Transnational Armed Conflict: Does it Exist?, in Scope of Application of International Humanitarian}

Law, Proceedings of the 13th Bruges Colloquium, 2013, 43 Collegium 114, p 115.

119_{Solis, (n 34), p 160.} 120_{Murphy, (n 16), p 16.}

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22 requirements are met.Firstly, the involvement of a State is required. Secondly, the State must be a signatory party to AP II. Additionally, the NSA must be organized and “under responsible command, exercise such control over a part of its territory as to enable them to carry out sustained and concerted military operations”.121 From the hundreds of articles that are set out in the Geneva Conventions and the Protocols, only CA 3 and AP II apply to NIACs. The status-based rights based on POW protections and combatant privileges, enshrined in the Third Convention, protected person and grave breaches are considered non-applicable.122

Summary executions are prohibited, in both IACs123 and NIACs124; despite treaty law not recognizing prisoner of war (POW) status for NIACs, such protection is still given. Rule 106 of customary law encompasses the POW status for both IACs and NIACs.125 Such a status is, however, rigorously denied in practice for NIACs. Thousands remain in Iraq’s prisons waiting for execution, and many sentenced on feeble legal grounds.126_{Under the proclaimed NIAC in Iraq,}

those affiliated with are judged based on Iraq’s Anti-Terrorism Law (No. 13) of 2005. Articles 2 and 3 of this law have formed the base for executions of IS affiliates, fighters, or mere affiliates if found guilty of the crimes pertaining to terrorism. The denial of fundamental civil rights and show trials, based on insufficient evidence or single testimonies, in an unfair criminal justice system is common.127 Lawyers defending IS affiliates, themselves were accused of affiliation for the mere fact of defending an accused.128 In Iraq, a confessional system is reported in which torture is viewed as a legitimate way to extract confessions and used on suspected IS affiliates.129 Torture of detainees is prohibited in both NIACs130 and IACs.131 Rule 90 customary IHL encompasses this prohibition.132

The obligation to repatriate prisoners of war after the cessation of hostilities is crucial. It is arguable that the coalition engaged in an IAC with IS under CA 2. After the cessation of hostilities, detained IS affiliates, would then constitute prisoners of war based on Convention III. POW status and combat immunity under the Convention IV detention model, would mean detention based on individual assessment of a threat to security133 and release or prosecute for war crimes, without

121_{AP II, Article 1.} 122_{Solis, (n 34), p 106.}

123_{AP III, Article 4(A); AP I, Article 44(3).} 124_{AP II, Article 4.}

125_{Henckaerts & Doswald-Beck, Customary International Humanitarian Law, vol 1, 2005, Rules, 384.} 126_{Amnesty International, Amnesty International Report 2017/18 - Iraq, 22 Feb. 2018.}

127_Ibid.

128_{Amnesty International, (n 126).}

129_{Reported by Belkis Wille, HRW researcher, during a conference held in Paris on the occasion of the 17th World}

Day Against the Death Penalty.

130_{Geneva conventions, CA 3 and AP II, article 4(2)(a).}

131_{Convention I, article 12(2); Convention II, article 12(2), Convention III, article 17(4); Convention IV, article 32}

and AP I, article 75(2)(a)(ii).

132_{Henckaerts & Doswald-Beck, (n 125), Rules, 315.}

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23 delay after the cessation of active hostilities. Article 132 of Convention IV specifically demands a reason for interment and a lack thereof is deemed a violation. The article encourages the release and repatriation of certain internees such as women and children, even during hostilities. Article 133, requires the cessation of any internment post-conflict. The situation now, with the Coalition’s failure to repatriate prisoners of war and civilians affiliated with IS would, therefore, be in violation of AP I; constituting an “unjustified delay” within the meaning of Article 85(4)(b), possibly constituting a war crime.134

Concerning criminal accountability, there is a convergence in the dichotomy, nonetheless, war crimes are not as clearly delineated and established in NIACs, as they are in IACs. Concerning “enemy aliens” Convention IV restricts detention measures to those “absolutely necessary” for security purposes.135 We see a clear distinction, with repatriation only being halted whenever criminal proceedings are taken against a detainee. The denial of POW status and the repatriation of internees may have resulted in the further deterioration of the Syrian Democratic Forces-run (SDF) Al Hol internment camp in northern Syria, in which 70,000 people live in increasingly dire conditions.136 With no clear aim of repatriation of IS affiliates, many families are left to their fate as outcasts.

Concerning civilians, in both classifications forced displacement is prohibited; both NIACs 137_and

IACs.138 These are coherent with rule 129 of customary IHL, prohibiting the forced displacement of civilians.139 The obligation to distinguish between civilians and combatants is procured in IACs,140 while in NIACs we see that the targeting of civilians is prohibited. 141 Thus, on the surface, the safeguarding of the principle of distinction between civilians and combatants seems somewhat unaffected by the dichotomy. However, the prohibition of indiscriminate attack and the methods and means of warfare causing unnecessary suffering under IACs are more delineated and clear.142 Moreover, under NIACs, the principle of proportionality in target selection is not included.

Often, customary law is pointed out to fill the gap. Rule I of customary IHL states that attacks must not be directed at civilians as well and this rule is applicable in both IACs and NIACs.143_The

disproportionate, indiscriminate attacks on military targets establish a violation of the principle of

134_{Casey-Maslen & Haines, Hague Law Interpreted: The Conduct of Hostilities under the Law of Armed conflict,}

2018, p 345.

135_{Henckaerts & Doswald-Beck, (n 125), Rule 99.}

136_{Cumming-Bruce, Horrid Conditions in Syria Camp Where ISIS Families Fled Risk Fostering Extremism, NYT,}

Sept. 11, 2019.

137_{AP II, article 17.}

138_{Convention IV, articles 49 and 147; AP I, article 85(4)(a).} 139_{Henckaerts & Doswald-Beck, (n 125), Rules, 457.} 140_{AP I, articles 48, 51(2) and 52(2).}

141_{AP II, article 13(2).} 142_{Stewart, (n 1), p 320.}

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24 proportionality under IACs.144_{Such a rule does not apply in NIACs. However, rules 11, 12, and}

13 customary IHL are means to close this gap.145 Nonetheless, densely populated cities were bombarded with explosive weapons with wide-area effects, despite the customary law prohibition of such tactics.146 The HRW has called on the Coalition to address the civilian harm and provide for ‘Condolence’ payment for a way forward into reconciliation. Indiscriminate attacks remain not thoroughly investigated and a program for compensation does not exist. The coalition has on some occasions provided compensation, however, only a fraction of the victims have been acknowledged. The US Defence Department stated “practical limitations” and “limited US presence” as reasons for this failure.147_{With no comprehensive IAC regime, it still depends on the}

coalition’s willingness to engage in reconciliation.

Attacks on hospitals, including a children’s hospital in Raqqah were documented, despite such attacks being prohibited in both NIACs148_{and IACs.}149_{Rule 28 of customary IHL mirrors this}

prohibition.150 Attacks on humanitarian relief personnel are not codified in conventional treaty law for NIACs, which is the case for IACs.151 Again, customary law provides relief through rule 31 of customary IHL, stating that humanitarian relief personnel must be respected and protected, and as such, merely theoretically close the gap in the dichotomy.152

NIAC’s limitation

More certainty is achieved with an IAC, as a NIAC has been proven to be rather ambiguous in circumstances. The ‘facts on the ground’ assessing conflict characterization concerning NIACs are significantly less objective than in IAC situations. “Indeed, they are fundamentally subjective and fluid as opposed to the more fixed and readily identifiable criteria common to IAC.” 153 The intensity threshold has frequently been an uncertain concept. Denial of the continuation of an IAC in Afghanistan, eventually even lead to the denial of a NIAC in certain instances. Such was the case concerning the Kunduz Tanker incident in Afghanistan in 2009.154 An American airstrike called in by German troops killed over 90 civilians, leading to a question of whether IHL is applicable. Groeben observes: “The ambiguity in the facts follows an ambiguity in the applicable

144_{AP I, article 51(4).}

145_{Henckaerts & Doswald-Beck, (n 125), Rules, 37, 40 and 43.}

146_{HRW, Iraq/US-Led Coalition: Weapons Choice Endangers Mosul Civilians, JUNE 08, 2017.} 147_{HRW, Syria: US Coalition Should Address Civilian Harm, July 9, 2019.}

148_{AP II, article 11(1).}

149_{Convention I, article 19; Convention II, article 23; Convention IV, article 18 and AP I, article 12.} 150_{Henckaerts & Doswald-Beck, (n 125), Rules, 91.}

151_{AP I, article 71(2).}

152_{Henckaerts & Doswald-Beck, (n 125), Rules, 105.} 153_{Mclaughlin, (n 10), p 3.}

The Humanitarian Crisis In Syria And Iraq: A Direct Result Of Outdated Humanitarian Approaches To New Patterns.