Discuss about Whether The Current Regime Of International Humanitarian Law Provides Enough Protection To Either Civilians.
During the last 60 years, civilians are being the main victims of war. As a result, the protection provided to the civilians during armed conflict is the cornerstone of international humanitarian law. Protection provided by extends to the public and private property also. Similarly, the international humanitarian law also identifies and protects it particularly vulnerable groups of civilians like women, children and the displaced.[1] During the World War II and a number of conflicts that took place after it, civilians remained the main victims. Although, civilians have always suffered in the event of a war, however the brutal impact of the Second World War, including indiscriminate attacks, mass extermination, hostage-taking, deportations took a heavy toll on the civilians. As a result, the Fourth Geneva Convention was adopted by the international community in 1949. Before it, the Geneva conventions provided protection for the sick, wounded, shipwrecked and captured combatants. However, the changing nature of the warfare was recognized by the “civilians convention”. Therefore legal protection was established for the persons who did not belong to groups of armed forces. This protection also covered civilian property. Later on, this protection was reinforced in 1977 by adopting the Additional Protocols to the Geneva Convention.[2]
Therefore, the international humanitarian law provides that the civilians who are under the power of enemy forces are required to be treated humanely under all circumstances and without any negative distinction. It provides that the civilians should be protected against all types of violence and degrading treatment, which includes torture and murder. In the same way, in case of prosecution, the law provides that they should receive a fair trial, including all the essential judicial guarantees.[3]
The protection that has been provided to the civilians also covers those who are trying to help the civilians, for example and political medical units and relief of the managing bodies that are providing essential items like medical supplies, food and clothing. The law requires that the warring parties should provide access to these organizations. Similarly the Fourth Geneva Convention as well as the Additional Protocol I also require that the belligerents should facilitate the working of such organizations. In the same way, even if all the civilians are protected by the international humanitarian law without any type of discrimination, but there are certain groups that deserve special mention. For example, children and women, sex and aged are particularly vulnerable in case of an armed conflict. Similar is the case of the persons who are fleeing their homes and have become refugees or internally displaced.[4] The international humanitarian law does not allow forced displacement of such persons by any violence, intimidation of starvation. Generally, in case of an armed conflict, families get separated. Therefore the international humanitarian law requires that all reasonable steps should be taken by the states to prevent it. Similarly, action also needs to be taken in order to reestablish contact between the family by providing information and by facilitating testing activities.[5]
In this way, we see that extensive protection has been provided by international humanitarian law, including the Geneva Conventions and additional protocols. However, the problem during the last 50 years is related with application. States as well as the non-State armed groups have failed to respect their obligations adequately. The result is that the civilians continue to suffer extensively in case of nearly each armed conflict. There are certain conflicts where the civilians are particularly targeted and have to face terrible atrocities.[6] This results in ignoring the very foundations of the Geneva conventions, which is the respect for human beings.
A recent example of these atrocities can be found in Syria. The term human catastrophe has acquired a particularly profound meaning regarding the situation present in Syria. As a result of the three years of civil war, it is estimated that nearly 150,000 persons have been killed. Similarly, more than 2.5 million persons have fled to neighboring countries from Syria. This amounts to more than 10% of the population of the country. Similarly, there are nearly 9.3 million people in Syria, who desperately need humanitarian assistance and more than 6.5 million persons have been displaced internally.
The presence of such ‘humanitarian catastrophe’ can be described as the trigger point for action that has to be taken in accordance with some doctrines of international law. An example in this regard can be given of the ‘Responsibility to Protect’ (R2P) doctrine which imposes an obligation on the international community to stop and really yet to such humanitarian catastrophes. At the same time, there are certain international lawyers, as well as States like the United Kingdom that have argued that the international humanitarian law allows exceptional measures which include military intervention in a particular State, for the purpose of avoiding such humanitarian catastrophe.[7]
It will be a huge task to document all the violations of the international law that place during the Syrian conflict and probability it could be attempted by the International Criminal Court or a specialist tribunal.[8] However, some of the previous violations of international law that were carried out by the parties to the conflict in Syria have been mentioned below.
The rules of international humanitarian law are applicable to the conflict in Syria due to the reason that it is a non-international armed conflict. It was an intense conflict that took place between the government and several well-organized rebel groups.[9] Apart from the international humanitarian law, the international human rights law is also applicable in Syria. For instance, sea is a party to International Convention on Civil and Political Rights (ICCPR) and also to the Convention against Torture.
The international law provides that the civilians should not be attacked by the parties to the conflict. A distinction should always be maintained between the civilians and combatants, as well as the military targets and civilian objects. It is also required that the parties to conflict should not undertake ‘indiscriminate attacks’ that strike the military objectives as well as the civilians without any distinction due to their nature.[10] However, this rule was repeatedly violated by all the parties to the conflict in Syria. Particularly the government forces have used barrel bombs in civilian areas, which results in the violation of the rule of distinction. In this regard, the UN Secretary General had reported in May, 2014 that “indiscriminate aerial strikes and shelling by the government forces caused deaths, injuries and the large-scale displacement of the civilians. The opposition groups also carried out indiscriminate shelling and used car bombs in crowded civilian areas”.
The international law also prohibits the use of torture. As the prohibition is absolute, the use of torture cannot be justified by the state of emergency or war. According to an Independent International Commission of inquiry for Syria that was established by the UN human rights Council, it was discovered that there was widespread use of torture. Similarly, there were incidents of sexual violence and starvation in the government detention facilities. Similarly, recently there have been rebel groups, like the Islamic State of Iraq and al-Sham that have also been reported to increase the use of torture of the civilians.[11]
In the end, it can be stated that the scale of violations of international humanitarian law in Syria is such that evidence has been found by the Commission of Inquiry, which indicates that there have been a large number of war crimes and crimes against humanity that have to be faced by the victims of this conflict. What crimes are considered as a serious breach of international humanitarian law. In the same way, the crimes against humanity like murder, torture and sexual violence that take place as a part of systematic and widespread attack against the civilian population. The international law provides that such offenses can be tried by the International Criminal Court. However due to the reason that Syria is not a party to the statute of ICC, the International Criminal Court does not have the jurisdiction unless the UN Security Council refers the situation in Syria to it. However, a draft Security Council resolution which referred the situation in Syria to the International Criminal Court was vetoed by Russia and China. Hence, the risk is still present that crimes against humanity and war crimes will continue to take place in Syria with impunity. As a result of the gravity of this situation, the response of the international community to the crisis in Syria cannot be described as adequate.
De Guttry, A., F. Capone, Ch. Paulussen (eds.), Foreign Fighters under International Law and Beyond, The Hague, Asser Press, 2016.
Gartenstein-Ross, D., N. Barr and B. Moreng, The Islamic State’s Global Propaganda Strategy, The Hague, International Centre for Counter-Terrorism, 2016.
Gerlach, D., Herrschaft über Syrien: Macht und Manipulation unter Assad, Hamburg, Edition Körber-Stiftung, 2015.
Goldsmith, L.T., Cycle of Fear: Syria’s Alawites in War and Peace, London, Hurst & Company, 2015.
Krieg, A., “Externalizing the Burden of War: the Obama Doctrine and US Foreign Policy in the Middle East”, International Affairs, 92 (2016), No. 1, pp. 97-113.
Owen, J.M., “Springs and their Offspring: the International Consequences of Domestic Uprisings”, European Journal of International Security, 1 (2016), No. 1, pp. 49-72.
?eysane, V. and C. Çelik, “R2P and Turkish Foreign Policy: Libya and Syria in Perspective”, Global Responsibility to Protect, 7 (2015), No. 3-4, pp. 376-397.
Sinai, J., “A Framework for Assessing the Mobilization of Westerners by Jihadists in Syria and Intervention Points for Counter-Measures”, Perspectives on Terrorism, 10 (2016), No. 3, pp. 45-52.
Terry, P., “Germany Joins the Campaign against ISIS in Syria: A Case of Collective Self Defence or Rather the Unlawful Use of Force”, Russian Law Journal, 4 (2016), No. 1, pp. 26-60.
Walt, S.M., “ISIS as Revolutionary State: New Twist on an Old Story”, Foreign Affairs, 94 (2015), No. 6, pp. 42-51.
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