Skip to main content

Syria must be held to the law of war

By Laurie R. Blank and Geoffrey S. Corn, Special to CNN
updated 11:41 AM EDT, Wed April 4, 2012
Mourners carry the coffin of Ahmad Qarush, 13, who was killed in Shermin. A boy holds up remains of Syrian Army shells.
Mourners carry the coffin of Ahmad Qarush, 13, who was killed in Shermin. A boy holds up remains of Syrian Army shells.
STORY HIGHLIGHTS
  • Writers: What is happening in Syria is a war, but international legal experts refuse to call it that
  • Legal experts say it's not a war because the opposition isn't well-organized
  • If it's determined to be war, then the law of war applies, they say, even to an internal conflict
  • Writers: The law sets standards to restrain brutality, protect civilians, minimize suffering

Editor's note: Laurie Blank is the director of the International Humanitarian Law Clinic at the Emory University School of Law. Geoffrey Corn is a professor at South Texas College of Law, a former senior law of war expert for the U.S. Army and retired lieutenant colonel in the U.S. Army JAG Corps.

(CNN) -- The U.N. Commission of Inquiry on Syria recently determined that the fighting in Syria is not an "armed conflict" (PDF) -- the legal term for war -- under international law because the opposition forces are not sufficiently organized. Yet surely the protesters, dissident fighters and terrified citizens caught up in the violence in Syria believe they are at war.

States and other international legal experts are following the same overly technical approach and, as a result, not applying the law designed for just this situation: the law of war. The international community is left unable to use every available tool in its efforts to halt the violence and protect civilians from extraordinary suffering.

Failing to call Syria's upheaval an armed conflict -- the legal term for war -- has real and immediate consequences. Contrary to what events in Syria suggest, war is not waged in a legal vacuum. International law regulates permissible conduct during war, even civil war.

The law of war exists specifically to restrain brutality in war, protect innocent civilians from direct attack and minimize suffering. It prohibits deliberate attacks on civilians and using them as human shields, requires humane treatment of the wounded or detained personnel, obligates parties to respect and protect medical aid providers, mandates efforts to facilitate delivery of humanitarian relief, and imposes criminal responsibility on those who disregard these obligations. These basic and essential protections apply during any armed conflict.

Laurie Blank
Laurie Blank

The only rule that President Bashar al-Assad and his forces follow, however, is the rule of unrestrained brute force. Indiscriminate shelling of towns; civilians forcibly used as human shields; and attacks on the wounded, ambulances and humanitarian workers are a daily staple in the mismatched struggle between al-Assad's heavily armed and morally corrupt forces and the regime's opponents: protesters, dissident army units and other fighters.

Geoffrey Corn
Geoffrey Corn

Massive suffering from heavy-handed government responses to internal threats is nothing new; indeed, the images from Syria are unfortunately all too common. Bosnia, Sierra Leone, Rwanda, Sudan and now Syria are the latest in history's long line of notoriously brutal struggles between competing factions within a state. Historically, states did not recognize the law of war's application during internal conflict, arguing that internal matters were solely the concern of the state. The need to maximize protection of civilians in the face of the unprecedented brutality of internal conflicts -- especially the Spanish Civil War -- was the primary motivation for including fundamental law of war protections for such conflicts in the 1949 Geneva Conventions.

Demanding that the Syrian government respect international human rights obligations is certainly appropriate. These obligations protect the same fundamental rights as the law of war. But armed conflict involves a level of force and violence that triggers the law of war's more specialized international legal regime, one better suited to address war's full range of challenges. Notably, however, there are no demands that the parties abide by the law of war.

Peace plan backlash in Syria?

The United Nations Commission and other experts may fear that acknowledging an armed conflict in Syria will give both sides free rein to use military force. Such concern is naïve in the present circumstances. Al-Assad is already using maximum firepower. The primary concern must be whether we can use every available tool to regulate that use of force to protect innocent victims.

Reality thus tragically demonstrates that the essential dividing line in Syria is not between peacetime and wartime but between the law of war and no law at all. Syria's crisis surpassed that demarcation line long ago, even if the opposition is not extensively organized.

Levels of violence obviously exceeding what is normal during peacetime and, especially, a government unleashing its full military might to repress a dissident threat call for the application of the law of war. The international community's refusal to recognize an armed conflict in Syria can only be characterized as not seeing the forest for the trees.

Widespread recognition that the situation has risen to the level of armed conflict is no talisman: It will not result in immediate intervention, nor is it likely the regime will immediately change its tactics. What it will do is arm those seeking an end to indiscriminate brutality with a clearly defined legal basis to demand restraint from the parties to the hostilities. Perhaps more important, it will place Syrian leaders on immediate notice that their actions will be judged against a standard of wartime conduct, and that they are accountable for the widespread suffering they have caused.

It is time to call a spade a spade and demand compliance with this law. By doing so, an international community increasingly disgusted by events in Syria can send a clear message that the law's basic protections for persons in the conflict zone must be upheld and that every leader responsible for violating this law will be held to account.

Follow us on Twitter: @CNNOpinion.

Join us at Facebook/CNNOpinion.

The opinions expressed in this commentary are solely those of Laurie Blank and Geoffrey Corn.

ADVERTISEMENT
Part of complete coverage on
Syrian crisis
updated 8:43 AM EDT, Thu June 26, 2014
Jihadists have kidnapped over 140 Kurdish boys to "brainwash" them. But a few boys made a daring escape.
updated 8:48 AM EDT, Thu June 26, 2014
Reports that Syrian warplanes carried out a cross-border attack on Iraqi towns is further evidence of the blurring of the two countries' borders.
updated 5:33 PM EDT, Tue June 24, 2014
CNN's Atika Shubert speaks to a father whose teenage son joined the Jihad movement in Syria.
updated 7:41 AM EDT, Mon June 23, 2014
At the start of Syria's civil unrest, Omar would rally against the government alongside his schoolmates, later taking to the streets in his hometown of Salqin.
updated 5:17 PM EDT, Mon June 23, 2014
Atika Shubert looks at the rise of European jihadists traveling to Syria and whether they soon could join ISIS in Iraq.
updated 10:53 AM EDT, Mon June 23, 2014
The final stockpile of Syria's chemical weapons has been shipped out of the country, according to the OPCW, the Organisation for the Prohibition of Chemical Weapons.
updated 4:25 PM EDT, Wed June 25, 2014
The US isn't doing airstrikes in Iraq. Is there a vacuum for Syria and Iran to step in? CNN's Fareed Zakaria weighs in.
updated 4:04 AM EDT, Tue June 10, 2014
CNN's Nick Paton Walsh reports on Syrian rebels using underground explosions against the better-equipped regime.
updated 7:51 AM EDT, Mon June 9, 2014
CNN's Nick Paton Walsh returns to the besieged rebel areas of Aleppo, a pale skeleton of a city that has had the life bombed out of it.
updated 7:51 AM EDT, Mon June 2, 2014
Syria may be embroiled in a brutal three-year civil war, but that's not stopping the government from holding presidential elections.
updated 7:23 AM EDT, Tue June 3, 2014
CNN's Nick Paton Walsh meets an ISIS defector in hiding and gets a rare look into the group's recruitment process.
updated 12:10 PM EDT, Thu June 5, 2014
Over a thousand Syrian refugees have turned an abandoned shopping mall in Lebanon into makeshift living quarters.
updated 5:19 PM EDT, Wed May 28, 2014
What caught our experts' ears was as much about what he didn't address as much as what he did.
updated 6:19 AM EDT, Tue May 20, 2014
The three-year war in Syria has claimed 162,402 lives, an opposition group said Monday, as the raging conflict shows no signs of abating.
updated 9:41 PM EDT, Fri May 30, 2014
Official: The U.S. believes a jihadi featured in a suicide bombing video in Syria is Moner Mohammad Abu-Salha who grew up in Florida.
updated 10:37 AM EDT, Tue May 20, 2014
For the first time, Britain has convicted someone of a terrorism offense related to the Syrian civil war.
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT
ADVERTISEMENT