FACULTY OF LAW
____
Compliance and noncompliance by non-state parties to the Syrian conflict
Why non-state armed groups in Syria observe or neglect international humanitarian law
Caroline Feldbrugge
____
Master’s Thesis International and European Law: Public International Law Supervisor: dhr. prof. dr. T.D. Gill
ii
Abstract
While the non-state armed groups operating in the Syrian conflict are bound to abide by the norms of Common Article 3 to the Geneva Conventions and customary international humanitarian law, violations have been committed by all of them over the past six years. In order to move towards better compliance, it is important to understand the reasons for these violations, as well as those for acting in accordance with the law. In this research I have examined the compliance levels of Syria’s main non-state armed groups and several possible explanatory factors. While certainly not exhaustive, I have suggested that the armed groups’ compliance levels might first and foremost result from the compatibility of their ideologies and objectives with IHL principles. Further influences are their legitimacy-seeking
motivations on both the international and the local level, the extent to which they have incorporated IHL norms into instruments of their own, whether they are monitored by enforcement mechanisms, and their organizational structures. Armed groups whose ideology is in harmony with IHL principles are likely to show compliant behavior, but may still violate when other factors are pressing. Those groups whose ideology is incompatible with IHL are likely to show noncompliant behavior, unless external factors have the opposite effect. In the case of the highly noncompliant Syrian groups, the overall absence of such factors sadly strengthens the status quo.
iii
Table of Contents
1. Introduction and methodology 1
2. Identifying the main non-state armed groups 3
2.1 The opposition 4
2.1.1 The Free Syrian Army and other secular rebels 4
2.1.2 The Islamist rebels 5
2.1.2.1 Ahrar al-Sham 6
2.1.2.2 Jaysh al-Islam 6
2.2 The jihadists 7
2.2.1 The Islamic State in Iraq and al-Sham (ISIS) 7
2.2.2 Hay’at Tahrir al-Sham (former Al-Nusra) 9
2.3 The People’s Protection Units (YPG) 10
3. The armed groups and international humanitarian law 11
3.1 Applicability of IHL 11
3.2 Compliance analysis 13
3.2.1 The Free Syrian Army 14
3.2.1.1 Treatment of civilians and persons hors de combat 14
3.2.1.2 Specifically protected persons and objects 16
3.2.2 The Islamist rebels 17
3.2.2.1 Treatment of civilians and persons hors de combat 17
3.2.2.2 Specific methods of warfare 18
3.2.3 The YPG 19
3.2.3.1 Child recruitment 19
3.2.3.2 Forced displacement 20
3.2.4 The jihadists 21
3.2.4.1 ISIS 22
3.2.4.1.1 Treatment of civilians and persons hors de combat 22 3.2.4.1.2 Specifically protected persons and objects 25
3.2.4.1.3 Specific methods of warfare 27
3.2.4.1.4 Use of prohibited weapons 27
3.2.4.2 Al-Nusra 28
iv
3.2.4.2.2 Specifically protected persons and objects 29
3.2.4.2.3 Specific methods of warfare 29
3.2.5 Conclusions on compliance 30
4. Determinants of (non)compliant behavior 31
4.1 Awareness and understanding 31
4.2 Compatibility with ideology and objectives 32
4.3 Political legitimacy 33
4.4 Dependency on the population’s support 34
4.5 Norm internalization 34
4.6 Asymmetry and the effect of reciprocity 35
4.7 Deterring enforcement mechanisms 36
4.8 Practical reasons 36
5. Analyzing the Syrian groups’ conduct in the light of the normative framework 37
5.1 The Free Syrian Army 38
5.1.1 Ideological compatibility 38
5.1.2 Awareness and understanding 39
5.1.3 Other obstacles to compliance 39
5.1.4 Political legitimacy 40 5.2 The YPG 41 5.2.1 Ideological compatibility 41 5.2.2 Political legitimacy 42 5.2.3 Monitoring mechanisms 42 5.2.4 Obstacles to compliance 43
5.3 The Islamist opposition 43
5.3.1 Ideological compatibility and obstacles to compliance 43
5.3.2 Political legitimacy 44 5.4 The jihadists 46 5.4.1 ISIS 46 5.4.1.1 Ideological compatibility 46 5.4.1.2 Political legitimacy 47 5.4.2 Al-Nusra 47 6. Conclusion 50 Bibliography 52
1
1. Introduction and methodology
Six years into the Syrian war, the world is witnessing a continuing trend of disrespect for the rules that should serve to protect those who are not, or no longer, fighting. While State forces are certainly bound to comply with the international humanitarian treaties the government has signed and ratified, so do international standards oblige non-state parties to the conflict to refrain from infringing the most basic norms of the laws of armed conflict. The saddening reality to be observed every day is that all parties to the Syrian conflict are failing to keep their slates clean, resulting in hundreds of thousands of deaths and severe devastation of the country. Several humanitarian organizations seek to reduce suffering and damage to the people and their country by engaging non-state armed groups with the humanitarian norms that are binding on them, in order to improve their level of compliance with international law. For this to be effective, it is desirable to gain more knowledge on the underlying causes of their conduct. While some literature exists regarding the motivations behind armed groups’ compliance and noncompliance with international law, little has been captured on how the behavior of such groups operating in the Syrian war might be explained.
To this end, I will focus in this thesis on the social practice of international humanitarian law in Syria as administered by non-state parties to the conflict. By analyzing the extent to which the most important armed groups abide by international humanitarian law and what may be determinative of their behavior, I aim to contribute to a better understanding of what is
currently going on and why. As the object of my research is compliance, the analytical part of the study will involve a lot of non-legal aspects, which must be taken into account in order to obtain an enhanced comprehension of the law in action.
The first part of the thesis is of a descriptive nature and comprises two chapters in which I focus on who the actors are and what they have been doing in legal terms. The first
substantive chapter is devoted to identifying the main non-state armed groups active in Syria at the moment. In the next chapter, I start with discussing how international humanitarian law applies to these groups, followed by an overview of what is known about their actions over the past years and how these relate to IHL, based on a study of official reports.
In the second part I will focus on the ‘why’ of what is discussed in the first part. The fourth chapter presents an outline of what existing theories may be of use to explain compliant and
2
noncompliant behavior by non-state armed groups. In the final chapter, I analyze the conduct of the Syrian armed groups in the light of this framework.
While recognizing that far from perfect knowledge and understanding of what is happening on the ground restricts the capabilities of my findings, I nonetheless aspire to make a valuable contribution to the matter at hand.
3
2. Identifying the main non-state armed groups
The various non-state armed groups that color the landscape of the Syrian conflict form an intricate, constantly changing web of coalitions, alliances, dissociations and transformations. There are allegedly at least hundreds of armed groups and militias actively participating in the conflict.1 An exhaustive overview of all these different actors is not only impossible to lay
out, it would also not be comprehensive to pursue such a project for the purpose of this thesis. Therefore, only the main non state-armed groups and their ideologies will be discussed. Firstly, I will address the most important opposition groups, which will be referred to as the rebels. These may be broadly divided into secular rebels, mainly the Free Syrian Army, and Islamist rebel groups. In the second paragraph the two main jihadist organizations will be addressed, these are ISIS and the former Al-Nusra front. The Kurdish forces will be discussed in the third paragraph. Although the National Defense Forces also have an important role in the conflict, this pro-regime militia will be left out in the analysis for reasons of the vague separation between it and the government forces. The NDF was set up by the Syrian
government, which reportedly pays its members and provides them with military equipment.2 Furthermore, Assad frequently sends regular units into the field alongside NDF forces, making it difficult to clearly distinguish between them.3 In contrast with Hezbollah, over which the Syrian army seemingly does not have power,4 it is hard to maintain that the NDF operates autonomously. Therefore, it does not make sense to treat it as a non-state armed group for the purposes of this thesis. With regard to Hezbollah, although it certainly functions independently, its conduct appeared to be indistinguishable from that of the government as well in the examined reports, making it very difficult to analyze their behavior on Syrian territory. The militia will consequently be left out in the compliance analysis.
1 TD Gill ‘Classifying the Conflict in Syria’ (2016) 92 Intl L Studies 353, 354.
2 —— ‘National Defense Force (NDF) – Syria’ Terrorism Research & Analysis Consortium
<https://www.trackingterrorism.org/group/national-defense-force-ndf-syria> (31 March 2017).
3 Clarion Project ‘Factsheet: Who’s Who in the Syrian Civil War’
<https://clarionproject.org/whos-who-in-the-syrian-civil-war/> (31 March 2017).
4 Finnish Immigration Service Syria: Military Service, National Defense Forces, Armed Groups Supporting
4
2.1 The opposition
Since the outbreak of the conflict in early 2011, many different rebel groups have stood up against the government. These groups may be broadly divided into a secular and an Islamist opposition, whose ideologies vary to a great extent, while they all share the aim of
overthrowing the Assad regime. Currently, the entire rebel-controlled area is estimated at 13 percent of the Syrian land, which also includes the regions where Hay’at Tahrir al-Sham (the former Al-Nusra front) is dominating.5 In southern Syria the rebels control a large swath of
land along the Israel-controlled Golan Heights, including most of the Quneitra governorate. Further to the south and into Dara’a, the rebels are fighting both ISIS and the regime. It is mainly the Southern Front, a self-described moderate opposition group, that is operating in this area. This group is not ordered by the FSA, although its brigades are associated with it.6
Most of rural Damascus, the area northeast of the capital and an area north of Homs are currently rebel territory, as is the area in the northwest that includes Idlib and parts of the Hama and Aleppo governorates, whose eponymous cities are both under hard-fought government control. In this area heavy fighting with government troops is occurring every day.7
2.1.1 The Free Syrian Army and other secular rebels
As a result of the Syrian Government’s violent response to the peaceful protests, members of the military collectively deserted from the armed forces, establishing a movement known as the Free Syrian Army in July 2011. The set-up attained great support amongst citizens, whose protection has been a main goal from the founding onwards.8 Unsuccessful attempts were made to establish and retain a centralized command structure, causing the FSA to consist to this day of many different factions operating under the FSA banner.9 Due to its fragmented nature, the FSA can hardly be typified as an organization, but is best described as a loose
5 —— ‘Who’s Who in the Syria Conflict’ (21 January 2017) Al-Monitor
<http://www.al-monitor.com/pulse/afp/2017/01/syria-conflict-players.html> (31 March 2017).
6 —— ‘The Southern Front’ Stanford University
<http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/645> (31 March 2017).
7 Liveuamap Syria <http://syria.liveuamap.com/> (4 June 2017). 8 Centre for Safety and Development ‘Free Syrian Army’
<https://www.centreforsafety.org/userfiles/File/Final_-_Free_Syrian_Army_02-03-2017.pdf> (3 April 2017).
9 —— ‘The Syrian Conflict: Non-Islamist Opposition’ University of Illinois
<https://guides.library.illinois.edu/Syria/Non-Islamist> (3 April 2017); Stanford Militant Map <http://web.stanford.edu/group/mappingmilitants/cgi-bin/maps/view/syria> (3 April 2017).
5
alliance of mainly secularist armed opposition groups, connected by a moderate ideology based on dignity, justice, freedom and liberty.10 It holds a nationalist vision and aims for a unified, democratic Syria, freed from the reign of Assad and the incursion of ISIS.11 Throughout the years, the FSA has suffered great losses in favor of different parties to the conflict. The regime has exercised its repression with support from Russia, Iran and
Hezbollah, and Salafist and jihadist forces have emerged and gained significant control over parts of the country. The FSA has been further weakened as a result of auxiliary regional States such as Turkey and Jordan urging the alliance to shift its initial focus on defeating the government forces towards fighting ISIS and the Kurdish forces for the sake of their own border’s safety.12 An estimation of late 2015 put the number of groups within the FSA at
more than 2,050, in southern Syria comprising some 35,000 fighters.13 In February this year
an official with one of the groups attested a total of around 15,000 are currently operating in the northwest.14
2.1.2 The Islamist rebels
In recent years, the mostly secular Free Syrian Army is gradually being superseded by Salafi-Islamist rebel groups. Formerly organized in an umbrella organization called the Islamic Front, which dissolved in mid-2014 due to disagreements between Ahrar al-Sham and Jaysh-al-Islam, it is now mainly these two separate groups that dominate the Islamist opposition.15
Although they share the FSA’s goal of putting an end to Assad’s regime, they differ in the type of government they want to establish afterwards.16
10 C Lister ‘The Free Syrian Army: A Decentralized Insurgent Brand’ (Analysis Paper) (November 2016)
<https://www.brookings.edu/wp-content/uploads/2016/11/iwr_20161123_free_syrian_army.pdf> (3 April 2017) 25.
11 idem; Centre for Safety and Development (n 8).
12 Joseph Daher ‘The Complex State of Syria’s Opposition’ (2017) UNA-UK
<https://www.una.org.uk/magazine/1-2017/complex-state-syrias-opposition> (3 April 2017).
13 Adam Lucente and Zouhir Al Shimale ‘Free Syrian Army Decimated by Desertions’ (11 November 2015) Al
Jazeera <http://www.aljazeera.com/news/2015/11/free-syrian-army-decimated-desertions-151111064831800.html> (3 April 2017).
14 Tom Perry Suleiman Al-Khalidi and John Walcott ‘Exclusive: CIA-Backed Aid for Syrian Rebels Frozen
after Islamist Attack’ (21 February 2017) Reuters <http://www.reuters.com/article/us-mideast-crisis-syria-rebels-idUSKBN1601BD> (3 April 2017).
15 Stanford Militant Map (n 9). 16 Gill (n 1) 359.
6
2.1.2.1 Ahrar-al-Sham
Perceived as the most powerful non-jihadist Islamist rebel group is Ahrar al-Sham (‘Free Men of the Levant’), with around 10,000 – 15,000 fighters engaging in the conflict.17 It is
mainly active in the northwestern Idlib and Aleppo provinces where it fights the government forces.18 The group was formed in late 2011 by released prisoners and consists of Sunni
Salafist militants who oppose the Syrian regime. The main difference with the FSA is its strongly Sunni Islamist ideology.19 Apart from seeking to overthrow the Assad regime, Ahrar al-Sham fights for the establishment of a non-democratic, Sunni Islamic State in Syria.20 Its first leader stated in 2013 that an Islamic State ‘doesn’t mean that [we] want an authoritarian, dictatorial regime, which deprives people of their rights, rather, [we] want a regime built on consultation and the participation of the nation where it can play its role in supervising the ruler’.21 Although in the past it has cooperated with ISIS and Al-Nusra, the group started to
rebrand itself later on as a moderate group and has been classified accordingly by the West, Turkey and Arab countries.22 he group is critical of Salafi-jihadism and distances itself from Al-Qaeda and ISIS.23 It has nonetheless formed an alliance with the jihadist Hay’at Tahrir al-Sham, named Jaysh al-Fatah, or Army of Conquest.24
2.1.2.2 Jaysh al-Islam
Jaysh al-Islam, or the Islam Army, is the most important rebel group in the Damascus province and centered in Eastern Ghouta, where it managed to dispel ISIS in 2014. 25 The
17 Clarion Project (n 3).
18 Al-Monitor (21 January 2017) (n 5). 19 Reuters (21 February 2017) (n 14).
20 —— ‘Ahrar al-Sham’ Stanford University
<http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/523> (3 April 2017); Clarion Project (n 3).
21 Ali El Yassir ‘The Ahrar al Sham Movement: Syria’s Local Salafists’ (2016) Wilson Center
<https://www.wilsoncenter.org/article/the-ahrar-al-sham-movement-syrias-local-salafists-0> (3 April 2017).
22 Bassem Mroue ‘One of Syria’s Most Powerful Rebel Groups is Rebranding Itself with Turkey’s Backing’ (8
October 2015) Business Insider <http://www.businessinsider.com/ahrar-al-sham-in-syria-and-turkey-2015-10?international=true&r=US&IR=T> (3 April 2017); Haytham Mouzahem ‘Will Major Opposition Groups Face Off in Syria?’ (17 February 2017) Al-Monitor <http://www.al-monitor.com/pulse/originals/2017/02/syria-jihadist-factions-tahrir-al-sham-jabhat-fateh.html#ixzz4e2LeQLUM> (3 April 2017).
23 Sam Heller ‘How Ahrar al-Sham Has Come to Define the Kaleidoscope of the Syrian Civil War’ (2016) War
on the Rocks <https://warontherocks.com/2016/06/how-ahrar-al-sham-has-come-to-define-the-kaleidoscope-of-the-syrian-civil-war/> (3 April 2017).
24 Stanford Militant Map (n 9).
25 —— ‘Jaysh al-Islam’ Stanford University
7
faction, formerly part of the FSA-movement,26 was formed in 2013 by merging around fifty local opposition groups, and has been seeking to overthrow the Assad regime, although it considers ISIS as its main enemy. The group was brought forward by its first leader to step in where the Free Syrian Army had failed, which he discarded as a ‘puppet for outsiders’.27
Jaysh al-Islam managed to become highly effective and was estimated by late 2016 at somewhere between 12,000 – 20,000 fighters.28
As regards its ideology, the group has expressed itself in confusing ways. Although in 2013 its leader spoke of the cleansing of Shiites and Alawis as one of its goals,29 he used a more
moderate tone in later interviews and said that Jaysh al-Islam does not seek to change the demographic or social or religious formula of the Syrian society, but believes the country should be governed by a technocratic body that represents the diversity of the Syrian
people.30 It does, on the other hand, declare the establishment of an Islamic State as being its
ultimate goal, although it does not want to force this the way ISIS does.31 The group is therefore nonetheless regarded as an Islamic rebel group, even though it has said itself to be merely a group of Muslims.32
2.2 The jihadists
2.2.1 The Islamic State in Iraq and al-Sham (ISIS)
The organization now known as ISIS, also referred to as ISIL, IS or Da’esh, was first
established as Al-Qaeda in Iraq (AQI) to fight the U.S. troops when these invaded the country in 2003. During the Iraq war, it had already been present in Syria many times for resupplying purposes, and when the civil war started in 2011, the group seized the opportunity to take
26 Lister (n 10) 7.
27 Alex MacDonald ‘Rise of Jaish al-Islam Marks a Turn in Syria Conflict’ (7 May 2015) Middle East Eye
<http://www.middleeasteye.net/news/jaish-al-islam-piece-918366283> (4 April 2017).
28 Eli Lake ‘Syria’s ‘Army of Islam’ Says It Wants No War with Israel’ (29 September 2016) Bloomberg
<https://www.bloomberg.com/view/articles/2016-09-29/syria-s-army-of-islam-says-it-wants-no-war-with-israel> (4 April 2017).
29 Joshua Landis ‘Zahran Alloush: His Ideology and Beliefs’ (2013)
<http://www.joshualandis.com/blog/zahran-alloush/> (6 April 2017).
30 —— ‘The Rebel Commander of Damascus’ (15 December 2015) The Daily Beast
<http://www.thedailybeast.com/articles/2015/12/15/the-rebel-commander-of-damascus.html> (6 April 2017).
31 Middle East Eye (7 May 2015) (n 27). 32 The Daily Beast (15 December 2013) (n 30).
8
advantage of the country’s chaos and joined the fight against the regime.33 A few years later, in 2014, it cut ties with Al-Qaeda and renamed itself ISIS (Islamic State in Iraq and al-Sham).34 By then, the group was already engaged in heavy conflict with both the Syrian government forces and rebel groups, and controlled significant amounts of territory, before it formally declared a caliphate, with Raqqa as its de facto capital.35 Its ultimate goal is to
establish an independent State in western Syria and northern Iraq, governed by Sharia law, which is enforced in extremely violent ways. According to their Salafi-jihadist ideology, their interpretation of Islam is the only true one, which causes them to justify using violence against everyone who disagrees with them.36
In late 2016, the group’s strength was estimated at somewhere between 15,000 and 30,000 fighters.37 Although now almost completely expelled out of Iraq, ISIS still holds around 33
percent of Syrian territory.38 It controls one huge area of land stretching from the Iraqi border
well into western Syria, which, for a large part, is a sparsely inhabited region. In this area it is fighting government forces in Deir ez-Zor, and further into the country, currently in areas east of Aleppo. ISIS is also battling Southern Front rebels in the Dara’a province and the Kurdish forces in the north.39 Here the Syrian Democratic Forces, to be discussed later on, launched an offensive campaign to retake Raqqa from ISIS in November, 2016, and are also fighting to remove it from the Euphrates Dam.40
33 Tewfik Cassis ‘A Brief History of ISIS’ (21 November 2015) The Week
<http://theweek.com/articles/589924/brief-history-isis> (9 April 2017).
34 Thomas Joscelyn ‘Al Qaeda’s General Command Disowns the Islamic State of Iraq and the Sham’ (2014)
FDD’s Long War Journal <http://www.longwarjournal.org/archives/2014/02/al_qaedas_general_co.php> (9 April 2017).
35 —— ‘The Islamic State’ Stanford University
<http://web.stanford.edu/group/mappingmilitants/cgi-bin/groups/view/1> (9 April 2017).
36 Shadi Hamid and Rashid Dar ‘Islamism, Salafism, and Jihadism: a Primer’ (2016) Brookings
<https://www.brookings.edu/blog/markaz/2016/07/15/islamism-salafism-and-jihadism-a-primer/> (10 April 2017).
37 Clarion Project (n 3); Kristina Wong ‘General: 45,000 ISIS Fighters Killed in Two Years’ (11 August 2016)
The Hill <http://thehill.com/policy/defense/291179-general-isis-fighters-becoming-easier-to-kill> (9 April 2017).
38 —— ‘Who’s Who in Syria Conflict as Geneva Talks Loom’ (21 February 2017) Daily Mail
<http://www.dailymail.co.uk/wires/afp/article-4244734/Whos-Syria-conflict-Geneva-talks-loom.html> (16 April 2017).
39 Liveuamap Syria (n 7). 40 Clarion Project (n 3).
9
2.2.2 Hay’at Tahrir al-Sham (former Al-Nusra)
The former Jabhat al-Nusra was created in 2011 as the Syrian wing of Al-Qaeda and soon became successfully integrated in the conflict. Although previously part of the Islamic State in Iraq, from which it received much of its funding in the beginning, the groups later
developed a hostile relationship.41 In the summer of 2016 Al-Nusra rebranded itself as Jabhat
Fateh al-Sham and announced that it had split from Al-Qaeda, supposedly as a result of pressure from Russia and the U.S.-led coalition. However, they are still observed by many as tied to Al-Qaeda, since its fighters still battle alongside Al-Nusra.42 An alliance was formed with Ahrar al-Sham, called Jaysh al-Fatah (‘Army of Conquest’), that drove the regime out of the Idlib province.In January of this year, tensions arose within the coalition, and JFS
consequently established a new armed group with some other factions, called Hay’at Tahrir al-Sham, or ‘Organization for the Liberation of the Levant’.43 The coalition is dominant in northern Syria and Idlib and is believed to comprise a total of around 7,000 fighters,44 although more recently it has been classified as the largest Syrian government opposition group in the country,45 and is estimated by some to consist of over 30,000.46 Tahrir al-Sham
aims for an Islamic State governed by Sharia law, and holds as its philosophy that ‘the only way to establish God’s law on earth is through jihad and fighting’. The group opposes democracy and considers those who participate in elections to be unbelievers.47 Although its
name has changed multiple times, the group will be referred to as Al-Nusra throughout this thesis.
41 C Lister ‘Profiling Jabhat al-Nusra’ (Analysis Paper) (July 2016) 24
<https://www.brookings.edu/wp-content/uploads/2016/07/iwr_20160728_profiling_nusra.pdf> (16 April 2017) 12-14.
42 —— ‘The Syrian Conflict: Islamist Opposition’ University of Illinois
<http://guides.library.illinois.edu/Syria/Islamist> (16 April 2017).
43 —— ‘Tahrir al-Sham: Al-Qaeda’s Latest Incarnation in Syria’ (28 February 2017) BBC News
<http://www.bbc.com/news/world-middle-east-38934206> (16 April 2017).
44 University of Illinois (n 42).
45 Paul Antonopoulos ‘FSA-Affiliated Group Joins Al-Qaeda Coalition; Making it The Largest Militant Group
in Syria’ (21 March 2017) AMN <https://www.almasdarnews.com/article/fsa-group-joins-al-qaeda-coalition-making-it-the-largest-militant-group-in-syria/> (16 April 2017).
46 Nazeer Rida ‘Syria: Surfacing of ‘Hai’at Tahrir al-Sham’ Treatens Truce’ (30 January 2017) Asharq al-Awsat
<https://english.aawsat.com/nazeer-rida/news-middle-east/syria-surfacing-haiat-tahrir-al-sham-threatens-truce> (3 July 2017).
47 S Zuhur ‘The Syrian Opposition: Salafi and Nationalist Jihadism and Populist Idealism’ (2015) 2
10
2.3 The People’s Protection Units (YPG)
The YPG forms the military wing of the Kurdish Democratic Union Party (PYD), and was established to fight the government and the Islamist opposition forces in Rojava, northern Syria, which was claimed in March 2016 to be an autonomous Kurdish federation.48 A few
months earlier, a coalition was formed with other Kurdish, Arab and Christian groups to combat ISIS in north and eastern Syria, called the Syrian Democratic Forces. This umbrella organization managed to liberate almost three million people and over 44,000 square
kilometers of territory formerly in the hands of ISIS.49 Currently, the YPG controls about 20
percent of the country and around three-quarters of the northern border with Turkey.50
Although it is currently mostly battling ISIS, the Kurdish militia also opposes the Assad regime, and aims for a form of decentralization within a federal system.51 It seeks to achieve recognition of Rojava’s autonomy and to obtain sustainable control over the Kurdish
populated Syrian land.52
48 —— ‘Syria Civil War: Kurds Declare Federal Region in North (17 March 2016) Al Jazeera
<http://www.aljazeera.com/news/2016/03/syria-civil-war-kurds-declare-federal-system-north-160317111902534.html> (16 April 2017). 49 Clarion Project (n 3). 50 Al-Monitor (21 January 2017) (n 5). 51 Daher (n 12). 52 Gill (n 1) 361.
11
3. The armed groups and international humanitarian law
Having distinguished the main armed non-state actors operating in Syria, it must be
established how exactly international humanitarian law applies to them, before the extent to which their conduct is compliant can be examined. The central question in the first paragraph of this chapter is: how does international humanitarian law apply to non-state armed groups (NSAGs) in Syria? After having established their obligations under IHL, an overview of the (non)compliance by the armed groups will follow in the second part of this chapter.
3.1 Applicability of IHL
In order to establish the applicable law, it must first be made clear in what kind of conflict(s) the NSAGs are involved. International humanitarian law distinguishes between international and non-international armed conflicts, the former category concerning conflicts between two states, whereas the second is meant to typify conflicts between a state and one or more state actors or between state actors amongst each other. Since we are dealing with non-state armed groups, any conflict in which they are involved will be a non-international armed conflict (NIAC) by its nature, once two criteria have been met, as follows from the Tadic case. The first criterion relates to the intensity of armed violence, which must go beyond internal tensions and disturbances. The second requires that for a NIAC to exist, the armed groups involved must be sufficiently organized, which is measured along factors such as the presence of a command structure and operational and logistical capacities.53 The Independent International Commission of Inquiry on the Syrian Arab Republic, monitoring and reporting on the conflict since the outbreak, stated in August 2012 that ‘the intensity and duration of the conflict, combined with the increased organizational capabilities of anti-Government armed groups, had met the legal threshold for a non-international armed conflict’.54 Although the landscape of actors has changed since and continuously changes still, it can be inferred from their position in the conflict that the armed groups discussed in this thesis are all possessive of the required level of organization, which is clearly high enough for them to have become one of the major players in the field. It can thus be concluded that several
53 Prosecutor v Tadic (Opinion and Judgment) IT-94-1-T (7 May 1997) [562]. 54 IIC UN Doc A/HRC/21/50 [12].
12
international armed conflicts are currently present in Syria, both between the government and different armed groups and between armed groups, to most of which ISIS is one of the
parties, being the main shared enemy.
Since the different armed conflicts involving state actors in Syria are thus of a non-international character, Article 3 common to the four 1949 Geneva Conventions is applicable, serving as a minimum standard. Although Additional Protocol II is also related to this type of conflict, this agreement is only applicable on the territory of States that ratified it. Since Syria is not a party to this protocol, it is not binding to an armed conflict occurring on its territory.
Even though the Geneva Conventions and their complementary protocols are not open to non-state signatories, and non-state armed groups have thus not ratified any of these treaties, the wordings of Common Article 3 reveal that its norms are addressed to both state and non-state actors.55 This interpretation makes all the more sense since the provision is specifically drafted to cover armed conflicts involving non-state parties. The International Court of Justice in its Nicaragua judgment also confirmed the article’s binding force on non-state actors.56 Moreover, non-state actors are bound by the treaties ratified by the State on whose territory they are active, as a consequence of their being subject to the law of that State.57
The conclusion that Common Article 3 binds non-state armed groups means that they are under the obligation to respect the principle of distinction and accordingly to treat persons who do not or no longer take part in hostilities in a humane and non-discriminatory manner. To this end, they are prohibited to commit the following acts with respect to these persons: to exercise violence to life and person, in particular murder of all kinds, mutilation, cruel
treatment and torture, to take them hostage, to commit outrages upon personal dignity, in particular humiliating and degrading treatment, and to pass sentences and carry out
executions without previous judgment pronounced by a regularly constituted court, affording all the judicial guarantees which are recognized as indispensable by civilized peoples.
55 T Rodenhäuser ‘International Legal Obligations of Armed Opposition Groups in Syria’ (2015) 1 Intl Rev L
14.
56 Case Concerning Military and Paramilitary Activities in and Against Nicaragua (Nicaragua v United States
of America) (Merits) [1986] ICJ Rep 14 [219].
57 JM Henckaerts ‘Binding Armed Opposition Groups through Humanitarian Treaty Law and Customary Law’
in ‘Proceedings of the Bruges Colloquium: Relevance of International Humanitarian Law to Non-State Actors’ (2003) 27 Collegium <https://www.coleurope.eu/content/publications/pdf/Collegium27.pdf> (11 May 2017) 123, 126.
13
Moreover, they are obliged to collect and care for the wounded and sick. All parties, including non-state armed groups, are furthermore bound by customary international humanitarian law irrespective of their consent, since it represents the common behavioral standard within the international community.58 The International Committee of the Red Cross
has constituted a database consisting of 161 rules to display the currently existing customary law related to armed conflicts. Although the ICRC is an authority in the area of international humanitarian law, its view is not per se the ultimate determinative one. Having said this, its database is nonetheless used as the guideline for the compliance analysis in this thesis.
3.2 Compliance analysis
As daily news and various official reports undeniably show, large scale noncompliance with international humanitarian law in Syria has caused tremendous suffering and damage over the past six years. Although their conduct is kept out of the scope of this thesis, it should be borne in mind that Assad’s government forces are responsible for a massive share of this. Nonetheless, non-state armed groups to different extents have also carried out a vast amount of serious violations such as indiscriminate attacks, using child soldiers, abductions,
impairing humanitarian aid and ill-treatment of all sorts, ISIS being the absolute main perpetrator. While it is challenging to obtain a truthful image of the extent to which the different armed groups in Syria comply with IHL, due to many obstacles for investigators to reach the areas where they occur and whereby tracing back the perpetrators of specific violations becomes a difficult task, there has been considerable documentation since the outbreak of the conflict by an independent commission established by the Human Rights Council. The Independent International Commission of Inquiry on the Syrian Arab Republic (hereafter: IIC or ‘the Commission’) is mandated to investigate facts and circumstances that may amount to violations of international human rights law. Its reports appear every 6 months, sometimes more often, and provide valuable insight in the practices of the different groups throughout the years. Although the reports concern ‘human rights situations’ and only the most recent document specifically mentions violations of international humanitarian law in its title, such violations are listed throughout all preceding documents. Due to significant overlap between the two bodies of law, a clear distinction in many cases is neither
14
recognizable nor particularly relevant. Nonetheless, the following analysis will focus entirely on humanitarian law, for which the Commission’s reports, together with information
extracted from other UN reports and from those of organizations such as Human Rights Watch form the guideline.
3.2.1 The Free Syrian Army
3.2.1.1 Treatment of civilians and persons hors de combat
As all the parties to the Syrian conflict, the Free Syrian Army and affiliated groups have unlawfully killed people in the course of their actions since their establishment in 2011. With respect to the impact of their actions on children, the UN Secretary General in a report of 2015 attributed 24 out of 368 deaths and 296 out of 771 injuries due to indiscriminate attacks to the FSA.59 These numbers display the actually verified cases and can hardly be perceived as a realistic picture of the total amount of casualties, which is presumably much higher, but it gives an idea of the FSA’s share in the casualties during that year. Furthermore, reports of the earlier years reveal several occasions of the FSA summarily executing captured soldiers after they had sometimes been subjected to a quasi-judicial process in a Sharia court.60 The
Commission spoke of reasonable grounds to believe that the FSA committed this war crime on multiple occasions.61 With regard to these executions, there is documentation of the existence of a contract by which the fighters were ordered to kill those that surrender after being captured, an act that is clearly opposed to the required protection of hors de combat soldiers.62 It also stands as a violation of the customary rule prohibiting orders that no quarter
will be given.63 Interviewees have further stated that bodies of executed prisoners were
dumped on the roadside, a violation of customary IHL, which requires respectful disposal of the dead.64 Some other instances of activities that possibly constitute violations have been reported, such as ill-treatment in FSA prisons, of which the Commission could not determine
59 Report of the Secretary-General ‘Children and Armed Conflict’ (2015) UN Doc A/69/926 – S/2015/409
[197].
60 IIC UN Doc A/HRC/31/68 [52]; A/HRC/25/65 [30]; A/HRC/22/59 [102]. 61 IIC UN Doc A/HRC/31/68 [53]; A/HRC/22/59 [47].
62 IIC UN Doc A/HRC/31/68 [52]; A/HRC/25/65 [31].
63 ICRC Rule 46 in JM Henckaerts and Doswald-Beck (eds) Customary International Humanitarian Law
(Cambridge University Press Cambridge 2005).
15
whether these would amount to cruel, inhuman or degrading treatment.65 The same goes for accusations of sexual violence.66 It is therefore unclear whether the FSA has violated IHL in these cases.
In a more recent instance of indiscriminate shelling by the FSA, in October 2016, a camp for internally displaced persons was struck, which obviously amounts to an unlawful attack and stands as a violation of international humanitarian law. 67 Other recent reports do not mention any specific indiscriminate attacks by the FSA, although in several instances reference is made to ‘armed groups’ without distinguishing between the different parties.68 Whether the
FSA has been among these groups therefore remains unclear. The IIC’s report of March 2017 confirms that FSA groups recently arrested numerous citizens accused of being supportive of ISIS in August of last year, after which they were transported to the countryside of Aleppo.69 Arbitrary arrests constitute a violation of IHL and these actions furthermore amounted to enforced disappearances, which are also prohibited under customary IHL.70
Child soldiers
In 2014, the Free Syrian Army announced that it would refrain from the recruitment of children and the use of children in hostilities, thereby declaring to comply with customary norms that bind the organization. FSA commanders nevertheless expressed towards Human Rights Watch that they would still accept children in their ranks irrespective of their age, and as practice shows, this still happens indeed, sometimes at the extremely young age of 9 years old.71 Human Rights Watch confirmed in its annual report on events of 2015 that the FSA
kept using children for combat and other military purposes.72 In June 2015 the United
Nations verified 142 cases of children working for the FSA, around 50 percent out of all the cases in Syria. Large salaries were mentioned as reasons for this high percentage.73 Although
65 IIC UN Doc A/HRC/22/59 Annex VIII [47]-[56]. 66 IIC UN Doc A/HRC/22/59 [34] and Annex IX [21]-[23]. 67 IIC UN Doc A/HRC/34/CRP.3 [63].
68 IIC UN Doc A/HRC/34/64 [20]; A/HRC/31/68 [50]. 69 IIC UN Doc A/HRC/34/CRP.3 [71].
70 ICRC Rules 98 and 99.
71 Human Rights Watch ‘Syria: Armed Groups Send Children into Battle’ (22 June 2014)
<https://www.hrw.org/news/2014/06/22/syria-armed-groups-send-children-battle> (14 May 2017); Report of the Secretary-General ‘Children and Armed Conflict’ (2016) UN Doc A/70/836 – S/2016/360 [151].
72 Human Rights Watch World Report 2016: Events of 2015 (Seven Stories Press New York 2016) 551. 73 Report of the Secretary-General (2015) (n 59) [142, 191].
16
actual numbers are presumably higher, a decline seems to have occurred during last year, since in 2016 only 62 cases were attributed to the FSA.74
Practice in the early years of the conflict shows that the FSA was then already reluctant to some extent to use children in combat roles, as appears from interviews conducted in 2012 and 2013. It was stated by interviewees engaged with the organization that children were used in support roles, such as assisting in medical evacuations, since it was FSA policy that a gun could not be used below the age of 17, and at that age still mostly for guard duty, not for fighting, although contrary practice was also reported. One of the children, a boy of 16 years old, explained that assisting in evacuations was all the FSA allowed him to do, and that he could not stand by and do nothing while his family and community were being killed.75 In a
New York Times interview of 2014 an FSA commander disclosed that children sometimes insist to join the forces, for example when they have lost someone, and are then accepted, but not allowed to fight at the frontline.76 It appears that, as noted by Jo in her publication on rebel groups and international law, that child recruitment by the FSA is not – or no longer – widespread, and is generally limited to non-combat activities.77 It cannot be asserted that the group is not at all violating humanitarian law in this respect, but it surely does not act without restraint.
3.2.1.2 Specifically protected persons and objects
With regard to respecting IHL relating to hospitals, medical personnel and schools, the FSA does not have many verified offenses on its account. However in May 2013, when one of its brigades attacked a hospital without prior warning and while aware of the presence of
patients inside, it clearly acted contrary to IHL.78 Later that year an FSA brigade apprehended
a doctor on the grounds of giving medical care to government soldiers.79 Since punishing
medical personnel for performing their duties is prohibited under IHL, this arrest was also a breach of the FSA’s obligations. With respect to education facilities, the United Nations
74 Report of the Secretary-General (2016) (n 71) [149]. 75 IIC UN Doc A/HRC/21/50 [25]-[33]; A/HRC/24/46 [109].
76 H Jo Compliant Rebels: Rebel Groups and International Law in World Politics (Cambridge University Press
Cambridge 2015) 249.
77 Jo (n 76) 248.
78 IIC UN Doc A/HRC/25/65 [14]. 79 IIC UN Doc A/HRC/25/65 [40].
17
established one instance of the FSA striking a school and three cases of using them for military purposes in 2015.80 Its report of April 2016 does not mention violations of this kind.
While the first reports of the IIC mention several practices that stand as obvious breaches of humanitarian law, such as indiscriminate attacks and summary executions, those from August 2014 until February 2017 do not mention violations by the FSA specifically. This does not necessarily mean that they did not occur, since it may also indicate that its actions could not be clearly distinguished from those of other armed groups.
3.2.2 The Islamist rebels
3.2.2.1 Treatment of civilians and persons hors de combat
In an interview of 2013, a member of Ahrar al-Sham commented on the way his group at the time viewed its responsibility under international humanitarian law, which it considered non-existent due to the binding force of Sharia law. He explained how they do not distinguish between people according to IHL standards, but instead treat as a fighter anyone who helps the regime in any way, for example financially, by which he justified killing them. He furthermore admitted to executing captured soldiers.81 Reports by the IIC confirm this practice by the group and by the dissolved umbrella organization Islamic Front, sometimes after a trial had been conducted.82 The group’s rejection of IHL does not mean it is
completely oblivious of the distinction between fighters and civilians, since it does say to have regard for the presence of civilians during armed attacks and seeks to spare them, as appears from the interview. Nonetheless, reports reveal deliberate killings of civilians, including children, women and elderly, based on their ethnicity, religion or gender.
Particularly Alawites and Kurds have had much to suffer from Ahrar Sham and Jaysh al-Islam.83 They have been killed and kidnapped on a large scale by Islamist rebels, often in
cooperation with Al-Nusra, and have also been collectively humiliated.84 Kidnappings have
80 Report of the Secretary-General (2015) (n 59) [202].
81 —— ‘Syrian Rebels on IHL: in Their Own Words’ (13 May 2013) IRIN News
<http://www.irinnews.org/analysis/2013/05/13/syrian-rebels-ihl-their-own-words> (12 May 2017).
82 IIC UN Doc A/HRC/25/65 [32]; A/HRC/27/60 [29].
83 IIC UN Doc A/HRC/25/65 [58, 82]; Annex III [8, 12, 13]; A/HRC/27/60 [66]. 84 IIC UN Doc A/HRC/25/65 [45]; A/HRC/34/CRP.3 [70]; A/HRC/31/68 [105].
18
taken place as well with regard to soldiers, some of whom were reportedly sold to ISIS when their families could not afford the requested ransom, and were subsequently executed.85
3.2.2.2 Specific methods of warfare
The same interviewed member of Ahrar al-Sham furthermore claimed to distribute aid in an indiscriminate manner and to not obstruct unarmed foreign aid teams.86 The group has
nonetheless denied access to humanitarian convoys seeking entrance to besieged areas.87
Residents in these regions were compelled to live in dire conditions, even more so because their electricity and water supply lines were deliberately cut off.88 By blocking humanitarian
aid and depriving the population of their essentials, Ahrar al-Sham violated customary international humanitarian law.
Although Ahrar al-Sham was classified by several countries as a moderate rebel group, its actions seem far from mild. For example, Amnesty International documented many allegations of abductions, including of political and media activists and others who clearly classify as civilians.89Islamist rebels have furthermore engaged in shelling residential neighborhoods, arbitrary arrests and detentions, occupying schools, attacking private hospitals, destroying churches, using captured civilians and government soldiers as human shields, and using children in active combat roles.90 Jaysh al-Islam has been accused of having used chemical weapons. The group admitted to the use of prohibited weapons, but denied to have launched chemical attacks.91
85 IIC UN Doc A/HRC/28/69 [86, 99]. 86 IRIN News (13 May 2013) (n 81). 87 IIC UN Doc A/HRC/33/55 [37]. 88 IIC UN Doc A/HRC/27/60 [126].
89 Amnesty International ‘Torture Was My Punishment’: Abductions, Torture and Summary Killings under
Armed Group Rule in Aleppo and Idleb, Syria (Report) (5 July 2016) AI-Index MDE 24/4227/2016.
90 IIC UN Doc A/HRC/25/65 [40, 93]; A/HRC/27/60 [90]; A/HRC/28/69 [230]; A/HRC/30/48 [145];
A/HRC/31/68 [105]; Report of the Secretary-General (2016) (n 71) [149].
91 —— ‘Syrian Islamist Group Jaysh al-Islam Admits Using Banned Weapons Against Kurds in Aleppo’ (7
April 2016) RT News <https://www.rt.com/news/338849-jaysh-al-islam-chemical-aleppo/> (4 June 2017); Sam Heller ‘One Kurdish Neighborhood in the Crossfire’ (15 April 2016) The Daily Beast
19
3.2.3 The YPG
Although in earlier reports the YPG was found to have violated different rules of humanitarian law with regard to targeting civilians, abductions, arbitrary arrests and detentions, and discriminate distribution of humanitarian aid, these practices seem to have diminished over the years.92 In the most recent report, the group is still associated with non-compliance regarding child recruitment and in its treatment of displaced persons.
3.2.3.1 Child recruitment
As the only armed non-state group in Syria having signed Deeds of Commitment (DOCs) in order to comply with international humanitarian law, the Kurdish People’s Protection Units has made significant progress towards compliance over the past years. In 2014, the YPG signed a DOC concerning child recruitment and managed to demobilize some children from its ranks.93 Despite these efforts, however, the practice was not fully ended, leading the
general command to issue a circular to the recruiting centers, leaders of the military fronts and the different battalions’ commanders to remind them of the obligations emanating from the agreement and of their personal accountability, and warning them of the forthcoming consequences if they would still recruit children in their ranks.94 This seems to have further improved the situation. Geneva Call issued a report in early 2016 in which it spoke of positive developments and of goodwill among YPG commanders towards ending child recruitment. It based these conclusions on a visit to the Kurdish area, during which the
organization discussed the progress with commanders. Geneva Call noticed that the YPG had started to actively monitor compliance in the field, and that it had put in place a sanctions mechanism for officers who fail to adhere to international norms, by which several had already been effectively punished. Moreover, awareness of the prohibition seemed to have increased within the ranks, in the media and among the civilian population of Rojava. The YPG also publicly responded to allegations of violations, which furthermore showed a
92 UN Doc A/HRC/24/46 [53, 62, 94]; A/HRC/27/60 [130].
93 Geneva Call ‘Syria: Kurdish Armed Forces Demobilize 149 Child Soldiers’ (7 July 2014)
<https://genevacall.org/syria-kurdish-armed-forces-demobilize-149-child-soldiers/> (17 May 2017).
94 YPG General Command ‘Circular’ (5 July 2015)
<http://theirwords.org/media/transfer/doc/ypg_circular_english_2015-d0a38b50d760ac1fe5b76c37c7e0d121.pdf> (17 May 2017).
20
positive attitude towards its commitment.95 In spite of the improvements, full compliance in this area has not yet been reached, as appears also from reports by the UN and Human Rights Watch. The latter expressed in its most recent World Report its concern over continuing violations and over the set-up of a non-combatant category for 16- and 17-year olds.96
Regarding this practice, Geneva Call described how it found that children of these ages are allowed to await their turning 18 while staying in special centers if they are unwilling to return to their families. However, in a recent report the IIC also disclosed instances of forced recruitment of minors in practices amounting to torture.97 The UN noted in 2016 that even
though it had become increasingly difficult to verify cases of child recruitment, it was nonetheless able to establish continued use of young boys and girls in combat roles.98
3.2.3.2 Forced displacement
The IIC in its report of last March made notice of violations by the YPG of international norms regarding forced displacement. According to customary law, parties to a
non-international armed conflict may not displace the civilian population for reasons related to the conflict, unless its security is at stake or imperative military reasons can be invoked.99 The YPG or SDF forces displaced communities in northern Syria in the recent past for safety purposes, whereby they reportedly acted in accordance with IHL. However in doing so, the armed group is under an obligation to take all possible measures to provide the displaced with basic necessities such as shelter, hygiene, health, safety and nutrition, and to attempt to keep family members together.100 The Commission found that the YPG or SDF in some cases
failed to comply with this obligation.101 Furthermore, displaced persons are granted a right to
return to their homes once the reasons for their displacement cease to exist.102 Since the YPG
has taken advantage of their displacement by declaring military zones in some formerly residential areas, return is being hindered and the population consequently remains in poor humanitarian conditions.103 Moreover, it is questionable if the act of displacement itself was
95 Geneva Call ‘A Report from Inside Syria: a Visit to Monitor the Prohibition on the Use of Child Soldiers in
Kurdish Areas’ (10 February 2016) <https://genevacall.org/report-inside-syria-visit-monitor-prohibition-use-child-soldiers-kurdish-areas/> (17 May 2017).
96 Human Rights Watch World Report 2017: Events of 2016 (Seven Stories Press New York 2017) 576. 97 IIC UN Doc A/HRC/34/CRP.3 [94].
98 Report of the Secretary-General (2016) (n 71) [148]-[149]. 99 ICRC Rule 129.
100 ICRC Rule 131.
101 IIC UN Doc A/HRC/34/CRP.3 [91]. 102 ICRC Rule 132.
21
lawful in all cases. The group is being accused of having expelled tens of thousands of Arabs from their villages in order to ‘Kurdify’ these places.104 Whether imperative military reasons could be invoked in these cases is at least doubtful. However, the Commission did not find sufficient evidence of practices of particularly targeting Arab communities on the basis of ethnicity, and did accordingly not establish violations in this regard.105 Amnesty International
found in a report of 2015 that some cases of forced displacement constituted war crimes, and some constituted collective punishment, since they were carried out in retaliation for
perceived ties to other armed groups.106
The YPG’s connection with Geneva Call seems to have had a positive influence on its compliance with international humanitarian law. Apart from the already mentioned Deed of Commitment regarding child recruitment, the group has also signed DOCs both on the prohibition on sexual violence and the elimination of gender discrimination and on banning anti-personnel mines.107 Notwithstanding these commitments, YPG forces are still being accused of violently forcing people into their ranks, killing political opponents and silencing journalists by threatening and detaining them. 108
3.2.4 The jihadists
With respect to analyzing the compliance level of the jihadist armed groups, it should be noted that information about these groups is hard to obtain, due to difficulties in accessing the areas they control, as intimated by Human Rights Watch. Nonetheless, both ISIS and Al-Nusra have made their unlawful attacks widely known.109
104 Roy Gutman ‘America’s Favorite Syrian Militia Rules with an Iron Fist’ (13 February 2017) The Nation
<https://www.thenation.com/article/americas-favorite-syrian-militia-rules-with-an-iron-fist/> (25 May 2017).
105 IIC UN Doc A/HRC/34/CRP.3 [93].
106 Amnesty International ‘We Had Nowhere Else to Go’: Forced Displacement and Demolitions in Northern
Syria (Report) (October 2015) AI-Index MDE 24/2503/2015 32.
107 Geneva Call ‘Their Words: Database of Armed Non-State Actor Humanitarian Commitments’
<http://theirwords.org/?country=SYR&ansa=260> (25 May 2017).
108 The Nation (13 February 2017) (n 104).
22
3.2.4.1 ISIS
Known world-wide for its barbarous practices, ISIS has been causing immense suffering among the civilian population of Syria since it first joined the conflict in 2011. The group continues to violently impose its world view on the population and in doing so acts in total disregard of international humanitarian law, as will be demonstrated in the overview given below.
3.2.4.1.1 Treatment of civilians and persons hors de combat
Summary executions, torture and other inhumane treatment
Certainly, there is no way of exhaustively describing all the instances in which ISIS violated the prohibition on using violence to the life and person of civilians and hors de combat fighters in Syria since the outbreak of the armed conflict. By ceaselessly victimizing
members of the civilian population, including women and children, captured fighters, medical and religious workers and journalists, ISIS has created a massive record of unlawful killings and abuses. The group deliberately targets civilians, launches offensives that fail to
differentiate between civilians and fighters and carries out attacks resulting in
disproportionate civilian harm in relation to the military advantage.110 Tactics such as suicide
bombings are recurrently used and although these are in principle not prohibited under IHL, they are frequently committed in an indiscriminate manner and result in disproportionate civilian damage.111
Summary executions, which are specifically mentioned in Common Article 3 paragraph 1(d) as prohibited acts, have been and are still being performed by ISIS on a large scale. The IIC has documented an enormous amount of instances in its reports from July 2013 onwards. The victims of these executions are often men or boys, sometimes as young as 11 years old, who are being accused of belonging to other armed groups or of violating the ISIS criminal code.112 The group also often targets persons on account of their gender or sexual
110 IIC UN Doc A/HRC/28/69 Annex II [242]; A/HRC/31/68 [72], [97]; A/HRC/25/65 [105]. 111 IIC UN Doc A/HRC/34/CRP.3 [75].
23
orientation.113 Accusations of blasphemy, sodomy, adultery, smoking and not having a beard have all been put forward as reasons for capital punishment. In Raqqa, the public executions became a common spectacle on Fridays, and ISIS frequently forced people to watch them being carried out.114 Victims have been shot, beheaded or crucified, children have been
thrown off buildings and women, who are increasingly mentioned as victims throughout the years, have been stoned to death. 115 ISIS justifies these executions by religious law and their courts operate without any regard of fair trial standards, thereby committing the war crime of execution without due process.116
Apart from these executions, innumerable instances of torture and other cruel treatment further expand the list of ISIS’ brutal actions. Besides torturing with their own hands, ISIS fighters have also forced civilians, including children, to participate in their brutal actions.117 The IIC noted many violations of IHL towards civilian residents and spoke of systematic torture of captured FSA and YPG fighters. Examples of treatment described by the Commission are beating, lashing, amputation of limbs and incommunicado detention in overcrowded and insect-infested cells while being deprived of adequate food.118 The Commission concluded that ISIS through these actions committed war crimes and crimes against humanity.119
By torturing and executing in public and forcing people to watch or participate, ISIS seeks to instill fear among the people, whereby it violates another specific norm of customary
international humanitarian law, namely the prohibition of acts or threats of violence which are aimed at spreading terror among the civilian population.120 Furthermore, Common Article 3 paragraph 1(c) refers to outrages upon the personal dignity of civilians as a specific
category of prohibited acts. ISIS specifically engages in this act through its atrocious treatment of the dead. The group damages corpses, sometimes almost beyond recognition, and either displays them in public places to humiliate and degrade the victims and their
113 IIC UN Doc A/HRC/27/60 [80]; A/HRC/28/69 [185]-[190]; A/HRC/31/68 [113]; A/HRC/33/55 [109]-[110];
A/HRC/34/CRP.3 [77].
114 IIC UN Doc A/HRC/27/60 [30].
115 Human Rights Watch World Report 2016 (n 72); UN Doc A/HRC/34/CRP.3 [77]-[79]. 116 IIC UN Doc A/HRC/27/60 [36].
117 Report of the Secretary-General (2015) (n 59) [199]. 118 IIC UN Doc A/HRC/28/69 [75].
119 IIC UN Doc A/HRC/25/65 [60]-[61]. 120 ICRC Rule 2.
24
families, or refuses their retrievement.121 Through these actions ISIS additionally violates several more customary rules of international humanitarian law, such as the prohibition on mutilation of dead bodies and the obligation to return their remains to the family upon request. 122
Taking hostages and using humans as shields
Common Article 3 paragraph 1(b) specifically prohibits the act of taking hostages, a rule that has been violated by ISIS on massive scale. Thousands of Yazidi women and girls as young as 9 years old were abducted from Iraq in August 2014 and brought into Syria, where they are kept as slaves and subjected to extreme sexual violence.123 Sunni Arab girls are also forced into marriages with ISIS fighters.124 Furthermore, the group has taken hundreds of Kurdish men and boys and Assyrian Christians hostage in the past.125 In 2015, The United Nations verified that ISIS abducted and/or imprisoned 463 children.126 These offenses have left many
people traumatized and children in particular, as they reportedly were indoctrinated by being forced to watch violent ISIS propaganda material.127
Often equated with hostage taking is the prohibited practice of using humans as shields, by which military objectives and civilians or persons hors de combat are intentionally co-located as a way of keeping the adversary from targeting those military objectives.128 There are
several documented instances of ISIS engaging in this practice in the recent past, such as during the attack of Kobane in June 2015, when the group used civilians and also hospitals as shields.129 Another more recent instance occurred when the group withdrew from Minbij in August of last year as a result of the SDF retaking control over the city. While leaving the area, ISIS fighters took at least 500 civilians with them in order to safely retreat from the city.130 The prohibition on taking hostages and using human shields is rooted in the principle
121 IIC UN Doc A/HRC/25/65 [25]; A/HRC/28/69 Annex II [89]; A/HRC/28/69 Annex II [89]. 122 ICRC Rules 113 and 114.
123 IIC UN Doc A/HRC/33/55 [110]. 124 IIC UN Doc A/HRC/30/48 [79].
125 IIC UN Doc A/HRC/25/65 [46]; A/HRC/27/60 [42]. 126 Report of the Secretary-General (2015) (n 59) [204]. 127 IIC UN Doc A/HRC/33/55 [89].
128 ICRC Rule 97.
129 IIC UN Doc A/HRC/30/48 [123]. 130 IIC UN Doc A/HRC/34/CRP.3 [82].
25
of distinction and the obligation on all parties to an armed conflict to take feasible precautions to separate civilians and military objectives.
Often upon alleged violations of the rules imposed by ISIS or on grounds such as ethnicity, persons are being detained without a clear legal basis.131 ISIS has furthermore engaged in
practices that may lead to acts amounting to enforced disappearance, thereby violating customary IHL.132
Child recruitment
According to the IIC, ISIS has abused children on a scale not seen before in the conflict.133 In April 2016, the UN established a total of 362 cases in Syria, 274 of which were attributed to ISIS.134 Boys of six years old are recruited and trained in camps in the use of weapons.135 They then actively engage in combat roles, including in suicide-bombing missions.136 The children receive relatively large salaries that form an inducement for the children and their parents in harsh economic situations.137 According to the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflict, armed groups distinct from the armed forces may never use soldiers below the age of 18.138 Uniform
practice with regard to the minimum age is lacking, however, customary law states that 15 is the absolute minimum.139 Recruiting and using children below this age constitutes a war
crime.140
3.2.4.1.2 Specifically protected persons and objects
The group has frequently targeted persons and objects that enjoy special protection. ISIS has abducted priests, damaged churches and misused mosques for military purposes, whereby
131 IIC UN Doc A/HRC/24/46 [61]; A/HRC/25/65 [40]; A/HRC/34/CRP.3 [81]. 132 IIC UN Doc A/HRC/27/60 [51]; ICRC Rule 98.
133 IIC UN Doc A/HRC/28/69 [70].
134 Report of the Secretary-General (2016) (n 71) [149]. 135 IIC UN Doc A/HRC/30/48 [75].
136 IIC UN Doc A/HRC/27/60 [95].
137 Report of the Secretary-General (2015) (n 59) [191].
138 Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed
Conflict Article 4(1).
139 ICRC Rule 137.
26
these were put in jeopardy as they then became lawful targets.141 Attacking religious personnel and destroying religious institutions is prohibited by customary law.142 The latter fall under protected cultural property, as do schools.143 Of the 69 attacks on schools
documented by the UN in 2016, 11 were conducted by ISIS.144 The group has also misused
them for military purposes, endangering children and preventing access to education.145 ISIS
has perpetrated norms regarding medical personnel by punishing them for their medical activities, forcing them to stop working, and by detaining and killing them. It has also occupied and deliberately shelled hospitals.146 By comprising the humanitarian function of
hospitals, ISIS has been violating paragraph 2 of Common Article 3 in particular, which prescribes an obligation to care for the sick and wounded.
Journalists, to be respected and protected when engaged in professional missions in conflict areas for as long as they do not participate actively in hostilities,147 have furthermore been a frequent target of ISIS. The group was particularly responsible for making Syria the world’s deadliest country for media workers in 2013, when 28 of them were killed by armed
groups.148 In the years thereafter, ISIS continued to systematically target foreign journalists. Two American journalists were videotaped while being beheaded in 2014 as a reaction to the United States’ airstrikes in Iraq.149
The Syrian cultural heritage has also suffered greatly under ISIS control. In particular Palmyra, an ancient Roman city and a World Heritage Site, once rich of millennia-old structures and objects, has been effectively decimated. ISIS’ destruction is designated by the IIC as aiming to annihilate other forms of identity and to wipe out the history of other religions. It is described as a specific way of showing that ISIS ‘acts without fear of
accountability’.150 The willful attacking of property of great importance to cultural heritage is
141 IIC UN Doc A/HRC/25/65 [118]-[121]. 142 ICRC Rule 27.
143 ICRC Rule 40.
144 Report of the Secretary-General (2015) (n 59) [202]. 145 IIC UN Doc A/HRC/28/69 [70].
146 IIC UN Doc A/HRC/25/65 Annex III [14]; A/HRC/27/60 [112]; A/HRC/28/69 [82]; Annex II [257]; UN Doc
A/HRC/30/48 [147].
147 ICRC Rule 34.
148 IIC UN Doc A/HRC/25/65 [126]. 149 IIC UN Doc A/HRC/28/69 Annex II [83]. 150 IIC UN Doc A/HRC/31/68 [86]-[90].
