PROJECT WORK

JUS IN BELLO: CONCEPT, APPLICABILITY AND MANIFESTATION

WITH RELEVANCE IN THE SYRIAN CIVIL WAR (CASE STUDY)
 TABLE OF CONTENTS

1. ACKNOWLEDGMENT
2. RESEARCH METHODOLOGY
3. CHAPTER 1 - INTRODUCTION TO INTERNATIONAL HUMANITARIAN LAW
3.1. INTERNATIONAL HUMANITARIAN LAW AND THE RESPONSIBILITY TO PROTECT
3.2. SCOPE OF PROTECTION UNDER THE INTERNATIONAL HUMANITARIAN LAW
3.3. THE GENEVA CONVENTIONS, 1949
3.3.1 THE FIRST AND THE SECOND CONVENTIONS,
3.3.2 THE THIRD CONVENTION,
3.3.3 THE FOURTH CONVENTION,
4. CHAPTER 2 – WHERE DOES INTERNATIONAL HUMANITARIAN LAW APPLY?
4.1. INTERNATIONAL ARMED CONFLICT (IAC) & INTERNAL ARMED CONFLICT
4.2. NON INTERNATIONAL ARMED CONFLICT (NIAC)
5. CHAPTER 3 – THE SYRIAN CIVIL WAR - A CASE STUDY
5.1. THE SYRIAN CONFLICT – THE CAUSE
5.2. RELEVANCE OF IHL IN THE CONFLICT
5.3. RECOMMENDATIONS BY THE INDEPENDENT COUNCIL
6. CONCLUSION
7. BIBLIOGRAPHY

ACKNOWLEDGEMENT
 ACKNOWLEDGMENT

We hereby take this opportunity to express our humble gratitude and personal regards to Mr. Vipin
for inspiring and guiding us during the course of this assignment work and also for her cooperation
and guidance from time to time during the course of this assignment work on the topic.
We have prepared this assignment not only for marks but also to increase my knowledge.

Place: Neemrana - Tanmaya Purohit & Palak Jain

 RESEARCH METHODOLOGY

Aims and Objectives

The aim of the assignment is to present a detailed study of the International Humanitarian Law and
also side by side conduct a case study of the NIAC prevailing till date in the Syrian Republic,
thereby forming a concrete informative capsule of the same with an insight into the relevance and
applicability of the law in this context..

Research Plan
The researchers have followed Doctrinal method

Method of Writing
The researcher has used both a descriptive and analytical method of writing in order to understand
the issues better. The researcher has also relied on case law, to get an in depth understanding of
the subject. The method of writing followed in the course of this research project is primarily
analytical.

Sources of Data
The researcher has used secondary sources in order to obtain sufficient data for this project,
namely,

• Online Research Portals

• Books
• Articles

Mode of Citation:
The researcher has followed Bluebook (20th ed.) method of citation throughout the course of this
research project.
CHAPTER I

INTRODUCTION

1. INTRODUCTION

Jus in Bello (Latin for International Humanitarian Law), a branch of public international law,
regulates the relations between States, international organizations and other subjects of
International Law. It 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.1 In addition to prescribing laws governing resort to
force (Jus ad bellum), International Humanitarian Law also seeks to regulate the conduct of
hostilities, the principles of which cover the treatment of prisoners of war, civilians in occupied
territory, sick and wounded personnel, prohibited methods of warfare and human rights in
situations of conflict.2 The International humanitarian Law came to be known as such only in
recent years of its development, while earlier it was referred to as the Law of Armed Conflict, or
as the Law of War.3 If a closer look is taken at the concept of International Humanitarian Law, it
is a compromise between the two underlying principles, of humanity and of military necessity. All
the rules that have thereby been formulated under the International Humanitarian Law have been
given shape by keeping in mind these principles.

The Law in this area developed from the middle of the 19th Century. In 1864, due to the efforts of
Henry Dunant, who had been appalled by the brutality of the battle of Solferino4, he set in motion
the process of the adoption of the Geneva Conventions5 and the establishment of the International
Red Cross6. Various conventions were adopted at these conferences concerning land and naval

1
INTERNATIONAL HUMANITARIAN LAW – ANSWERS TO ALL YOUR QUESTIONS, International Committee of the Red
Cross, Pg. 8.
2
MALCOLM N SHAW, INTERNATIONAL LAW, 7TH ed. 2016, Pg 847.
3
Supra Note 1.
4
A Battle between Allied French Army under Napoleon III and Sardinian Army under Victor Immanuel II, against
the Austrian Army under Emperor Franz Joseph I, resulting in the victory of the Allied French Forces on 24 th June,
1859. Henry Dunant toured the battlefield, and was greatly affected by the conditions resultant of the war.
5
Right after the War of Solferino, the “Geneva Convention for the Amelioration of the Condition of the Wounded in
the Armies in the Field” was adopted in the conference in Geneva in 1864, a brief statement that was later revised in
1906.
6
Established in 1863, it was also known as the Committee of Five, comprising of Henry Dunant, Guillaume-Henri
Dufour, Gustave Moynier, Louis Appia, and Theodore Maunoir, later known as the International Committee of Red
Cross in 1876.
CHAPTER I

warfare, and these still act as the basis of the existing rules till date. International Humanitarian
Law has two branches:
INTRODUCTION
a. The Law of Geneva, which is the body of the rules that protect the victims of the armed
conflict, such as military personnel, who are hors de combat7 and civilians who are not or
are no longer participating in hostilities, and
b. The Law of the Hague, which is the body of rules establishing the rights and obligations
of belligerents in the conduct of the hostilities, and which limits means and methods of
warfare.

These names are derived for the branches of International Humanitarian Law on the basis of the
cities they were initially codified in. However, with the passage of time, and since the Additional
Protocols have been adopted on June 8th, 1977, both these branches have been combined, and the
distinction exists no more.8 It was observed by The International Court of Justice that the Law of
The Hague and the Law of The Geneva have become so closely interrelated of recent, that they
now form one complex subject known as the International Humanitarian Law.9

All the agreements and the conventions that had been made in the initial stages of the development
of the international humanitarian law9, all such agreements were later replaced by the Four Geneva
“Red Cross” Conventions of 194910, of which as of February, 2014, 194 member states are parties.
It is to be noted that the Fourth Convention was rather innovative and was meant for the protection
of the civilians who were caught in the crossfire due to some armed hostilities, and were in the
power of the state of which they weren’t nationals.

In 1977, two Additional Protocols to the 1949 Conventions were adopted, on the basis of the earlier
Conventions that had been adopted. International Humanitarian Law applies to the belligerent

7
It is a French term meaning “outside the fight”, referring to the persons that are incapable to perform their ability to
wage war.
8
Supra Note 1, at Pg. 5.
9
Supra Note 2, Pg. 849.
9
See e.g. the 1929 Conventions, one revising the 1864 and 1906 instruments on wounded and sick soldiers, while the
other on treatment of the prisoners of war.
10
The Four Geneva Conventions dealt respectively with the amelioration of the condition of the wounded, sick and
shipwrecked members of armed forces at sea, the treatment of the prisoners of war and the protection of the civilian
persons at the time of war.
CHAPTER I

parties irrespective of the reasons for the conflict or the justness of the causes for which they are
fighting. If it had not been so, it would have become impossible to implement the law, since every
party would claim to be a victim of aggression. 11
THE RIGHT TO PROTECT (R2P)

1.1 INTERNATIONAL HUMANITARIAN LAW AND THE RESPONSIBILITY TO PROTECT:

The Global Centre for Responsibility to protect which was set up in 2008 plays a major role in the
development and promotion of the concept of “Responsibility to Protect” (R2P). The
“Responsibility to Protect” has been defined as follows:

“It is a principle that seeks to ensure that the International Community never again fails to act in
the face of genocide and other gross forms of human rights abuse.”12

It was adopted by heads of state and government at the World Summit in 2005 sitting as the UNGA,
and it stipulates that: Firstly, the states have an obligation to have their citizens from mass
atrocities; Secondly, that the International Community should assist them in doing so; And Thirdly,
if the state in question fails to act accordingly, the responsibility then falls upon the larger
1314
community of states. The collateral damage of any sort of armed conflict is always the
innocent civilians who are always unluckily caught in the crossfire, and particularly so when the
attack takes place in densely populated areas, or so when the people are deliberately targeted.
Countries like Afghanistan, South Sudan, the Central African Republic, Somalia, Libya and the
Democratic Republic of the Congo continue to be mired in protracted armed conflicts, causing
immeasurable suffering for entire populations.15

The concept of R2P also implies that if the State apparently fails completely to protect its citizens
from four particular crimes – genocide, war crimes, ethnic crimes and crimes against humanity –
then the responsibility then falls into the hands of the international community at large to act
16
conjointly for the protection of the people in question. And it is also to be noted that, though

11
Supra Note 1, Pg 9.
12
Supra Note 1, PG. 9
13
Id.
14 ND 16
ICRC REPORT ON IHL
Supra Note 1, Pg. 9.
CHAPTER I

there has not been mentioned in any provision under the International Humanitarian Law, wherein
it has been allowed the use of force in maintaining international relations, but it also worth noting
that there has not been any provision included where the States have been prohibited from using
force for humanitarian purposes.15

15
Id.
CHAPTER I THE SCOPE OF PROTECTION UNDER IHL

1.2 SCOPE OF PROTECTION UNDER INTERNATIONAL HUMANITARIAN LAW

The principles that have been included under the International Humanitarian Law have an inherent
intention to extend the scope of protection to a relatively wide range of persons that have been
covered under this field of law. 16 The International Humanitarian Law protects all the victims of
the armed conflicts, including both Civilians and the combatants that have been laid down their
arms, or to say are hors de combat.19 The protection, however, that is provided under this area of
law differs on the basis whether the subject of the law is a civilian or a combatant.20 Under the
International Humanitarian Law, a particularly subtle differentiation has been demarcated about
between combatants, and those who are not involved in actual hostilities.

The Common Article 2, common to all the Geneva Conventions of 1949, states the scope of the
International Humanitarian Law in a rather concise manner. The provision provides as follows:

“…the present convention shall apply to all cases of declared war or of any other armed conflict
which may arise between two or more of the High Contracting party, even if the state of war is not
recognized by one of them.” 17

However, the fact cannot be denied that though International Humanitarian Law may have
overstepped the expert circle, and into the public domain, but it has resulted into the interpretation
and implementation of the rules under this law having a tad bit touch of politicization.

There have been tons of occasions where States have denied the applicability of the International
Humanitarian Law, although the circumstances suggested that the law was applicable in all aspects,
while there have also been instance where the States have attempted to broaden the Scope of the
law, and include into the ambit the situations that would have been otherwise been excluded from
the Scope of the law.18

16
Supra Note 2, PG 850.
19
Supra Note 1, at Pg. 26
20
Id.
17
Common Article 2, Para (1), The Geneva Conventions, 1949.
18
INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED CONFLICTS, Document
prepared for 30th ICRC Conference, Switzerland, Volume 89 Number 867, September 2007, at Page 720.
CHAPTER I THE SCOPE OF PROTECTION UNDER IHL

A rather more elaborated version of all the classes that have been included for protection under the
International Humanitarian Law is as follows:

A. INTERNATIONAL ARMED CONFLICTS:

CIVILIANS:

The Civilians under the IHL get protections in two conditions, which are:

Firstly, the general protection that they are provided against any danger that may be given rise to
by the increase of hostilities, and as far as the ambit of this kind of protection goes, it states that
the Civilians, who are not combatants, must not be made the objects of any sort of hostilities19,
and; Secondly, the Civilians who are ‘protected persons’, when in the hands of a party to a conflict,
but provided that20 –

- They are not the nationals of this enemy state,

- They are not the nationals of an ally of this enemy state, and
- They are not the nationals of a neutral state, i.e. a non-belligerent state21

The main reason for developing this protection is that these Civilians need to be protected because
they no longer enjoy the protection of their own state, whatever ma7y be the reason for the same.

COMBATANTS HORS DE COMBAT:

Though the combatants may be granted protection from any sort of the exorbitant injury, or from
any suffering that need not be done to them, but as a general rule, the combatants are now awarded
any kind of protection from the effects of any hostilities. It can be said that they can be attacked,
at least until they are hors de combat22. The combatants are considered to be hors de combat, if
they show a clear intention to surrender or to abstain from continuing any hostile activities.

19
Supra Note 1, at Pg. 27
20
Id.
21
A Non-Belligerent State is referred to as a State that does not fight or take part militarily in a given conflict, but
differs from a neutral state, as it may support either one of the belligerent states in any given conflict, although not
directly through any military operations.
22
See at Note 7.
CHAPTER I THE SCOPE OF PROTECTION UNDER IHL

B. NON INTERNATIONAL ARMED CONFLICTS:

It is particularly notable that when it comes to the category of Non International Armed Conflicts
(NIAC), the International Humanitarian Law does not recognize any specific type of persons that
are involved in the armed conflicts. The main reason behind this particular omission is that the
States have decided against giving the members of the organized non-State armed groups, the
status of combatants23. Thus, the Common Article 3 and the Additional Protocol II simply provide
that all those who have refrained from taking part in any sort of hostilities or have abstained from
continuing to participate in them are entitled to protection under the International Humanitarian
Law.28

PROTECTION TO THE SICK, WOUNDED, MEDICAL SERVICES AND WOMEN AND CHILDREN:

The International Humanitarian Law has made it clear that special protection has to be accorded
to the Medical personnel, and the Medical Establishments and that medical transports and
equipment must be protected and respected at all times, in all circumstances. While, at the same
time, the International Humanitarian Law has also made certain provisions regarding some certain
class of persons, such as women and children, saying that they have specific needs during armed
conflict, and that they should be given particular protection and respect that they deserve. Also, a
specific provision was included that stated that the punishment of Death Penalty must not be
implemented against the persons who were below the age of 18, as of when they committed the
crime in question. 24

23
As have been defined in the 1949 Conventions and the following Additional Protocols, combatants are all the
members of the armed forces of a party to the conflict (except medical and religious personnel). 28 Supra Note 1, at
Pg. 28.
24
Id.
CHAPTER I THE GENEVA CONVENTIONS

1.3 THE GENEVA CONVENTIONS:

The Laws of War were born of confrontation between armed forces, and the present International
Humanitarian Law, as it is now, has its origins in the customary practices of armies as they
30
developed over the ages and on all continents. However, over the passage of time, several
changes were seen, more sources of International Humanitarian Law were evolved, and finally, a
codified Law was seen to emerge over this passage of time.

A brief Timeline of the Evolution of the Codified International Humanitarian Law i.e. the Treaties
on IHL, in a chronological order, as of now can be found as follows:

YEAR TREATY
1864 Geneva Convention for the Amelioration of the Condition of the Wounded in
Armies in the Field
1868 St. Petersburg Declaration (Prohibiting the use of Certain projectiles in
Wartime)
1899 The Hague Conventions Respecting the Laws and Customs of War on Land,
and the Adaptation on Maritime Warfare in the Principles of the 1864 Geneva
Convention
1906 Review and Development of the 1864 Geneva Convention
1907 Review of the Hague Conventions of 1899 and adoption of New Conventions
1925 Geneva Protocol for the Prohibition of the Use in War of Asphyxiating,
Poisonous or Other Gases, and of Bacteriological Methods of Warfare
1929 Two Geneva Conventions –
a. Review and Development of the 1906 Geneva Convention
b. Geneva Convention relative to the Treatment of Prisoners of War
1949 Four Geneva Conventions31
I. Amelioration of the Condition of the Wounded and the Sick in
Armed Forces in the Field

30
CUSTOMARY INTERNATIONAL LAW REPORT, ICRC.
31
A detailed study of these Four Major Conventions shall ensue in this Chapter of the Project.
CHAPTER I THE GENEVA CONVENTIONS

II. Amelioration of the Condition of Wounded, Sick and Shipwrecked

Members of Armed at Sea
III. Treatment of Prisoners of War
IV. Protection of Civilian Persons in Time of War
1954 The Hague Convention for the Protection of Cultural Property in the Event of
Armed Conflict
1972 Convention on the Prohibition of the Development, Production and Stockpiling
of Bacteriological (Biological) and Toxin Weapons and their Destruction

1976 Convention on the Prohibition of Military or any other Hostile Use of

Environmental Modification Techniques
1977 Two Protocols Additional to the Four 1949 Geneva Conventions,
strengthening protection for Victims of International (Additional Protocol I)
and non-international (Additional Protocol II) armed conflicts
1980 Conventions on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May be Deemed to be Excessively Injurious or
to have Indiscriminate Effect (CCW). The CCW includes:
- Protocol (I) on Non Detectable Fragments
- Protocol (II) on Prohibitions or Restrictions on the Use of Mines,
Booby-Traps and Other Devices
- Protocol (III) on Prohibitions or Restrictions on the Use of
Incendiary
Weapons
1989 Convention on the Rights of the Child (Article 38)
1993 Convention on the Prohibition of the Development, Production, Stockpiling
and Use of Chemical Weapons and on Their Destruction

1995 Protocol (IV) on Binding Laser Weapons (added to the CCW of 1980)
1996 Revised Protocol on Prohibitions or Restrictions on the Use of Mines, Booby-
Troops and Other Devices (Protocol II [revised] to the CCW of 1980)
1997 Convention on the Prohibition of the Use, Stockpiling, Production and
Transfer of Anti-Personnel Mines and Their Destruction
CHAPTER I THE GENEVA CONVENTIONS

1998 Rome Statute of the International Criminal Court

1999 Second Protocol to the Hague Convention of 1954 for the Protection of
Cultural Property in the Event of Armed Conflict
2000 Optional Protocol to the Convention on the Rights of the Child on the
involvement of Children in Armed Conflict

2001 Amendment to Article I of the CCW of 1980

2003 Protocol (V) on Explosive Remnants of War (added to the CCW of 1980)
2005 Protocol Additional to the Geneva Conventions, and relating to the Adoption of
an Additional Distinctive Emblem (Additional Protocol III)

2006 International Convention for the Protection of All Person from Enforced
Disappearance
2008 Convention on Cluster Munitions
2013 Arms Trade Treaty

The International Humanitarian Law has evolved over time due to the change in the methods of
warfare for as and when the number of conflicts rose, the methods that were employed by the
humans for warfare evolved as well, including aerial bombardments, and the most prominent of
all, the capturing of the Prisoners of War, and these methods had begun to be used on an
unprecedented scale.

If we take a look at the current situations of the International Humanitarian Law, the Four Major
Geneva Conventions of 1949, and their Additional Protocols of 1977 are what lay down the basic
foundation of the International Humanitarian Law, and they shall be discussed in a comprehensive
manner in the next part of this Chapter.
CHAPTER I THE GENEVA CONVENTIONS

THE GENEVA CONVENTIONS OF 1949

The Four Geneva Conventions that were adopted in a series in the year 1949 lay down the basic
foundation of the International Humanitarian Law and include the basic principles of the Conduct
that needs to be followed in times of War. Together, the Geneva Conventions of 1949 and the
Additional Protocols of 1977 include 600 Articles that are meant to govern the Conduct of States
in times of War, and these are the major instruments of the Modern IHL.25

A. THE FIRST AND THE SECOND CONVENTIONS:

The First and The Second Geneva Convention out of the Four, talk about the Wounded and the
Sick in times of War.

Where the First Geneva Convention talks about the Wounded and the Sick on Land, it emphasizes
on the fact that members of the Armed Forces and Organized Militias, including those
accompanying them where duly authorized 26 , “shall be duly respected and protected in all
circumstances.” This convention talks about majorly who all persons need to be protected on their
being wounded or falling sick while still in the Field of War.27

There are several provisions that have been included in the First Geneva Convention to regulate
the well being of the Sick and the Wounded on Land in times of War. It says that the persons on
whom this Convention shall confer protection are to be treated humanely by either of the
conflicting party into whose hands they have fallen on an impartial basis, and that any attempt at
their lives or any act of violence against that person is strictly prohibited.28 Nor is any kind of
biological experimentation or torture of any kind allowed against them, along with the fact that
they are also not to be left without any medical care and assistance.29

25
Supra Note 1, at Pg. 17.
26
Article 13 (1), (2), (3) and (4), Convention (I) for the Amelioration of the Condition of the Wounded and the Sick
in Armed Forces in the Field, Aug. 12, 1982.
27
However, it must be noted that the Convention (I), 1949 also protects other persons as well – in particular medical
and religious personnel – but their protection is not conditioned on their being wounded or falling sick; see especially
Articles 24–27.
28
Article 12, Para 2, Convention (I) for the Amelioration of the Condition of the Wounded and the Sick in Armed
Forces in the Field, Aug. 12, 1982.
29
Id.
CHAPTER I THE GENEVA CONVENTIONS

The wounded and sick persons of a belligerent entity that have fallen into the hands of the enemy
are to be treated as the prisoners of war.30 The Article providing for the same also clearly states
that if the situation that has been talked of above arises, the Provisions of International
Humanitarian Law that apply to the Prisoners of War shall also apply in the same manner to the
aforementioned persons.31 The First Geneva Convention also states that the member states that are
party to any conflict must also make every possible effort to search for the dead and ensure that
they are prevented from being despoiled.32 Also, the parties to any conflict are to record in proper
at the earliest the details of any wounded, sick or dead people of their opposing party to the conflict,
and then help them commute to the other side as soon as possible by all possible means at their
33
disposal. The Convention also talks about the Medical Personnel and other Medical
Establishments, and specifically makes it noted that these in particular should not be attacked.34
The Convention even provides protection to the medical personnel, regardless of the fact whether
they are armed or not35 and also spells out the manner of the treatment of the medical Personnel36,
while it also deals with the recognized emblems of the International Humanitarian Law.37

The Second Geneva Convention of 1949 deals with the Condition of the Wounded, Sick and
Shipwrecked Members of the Armed Forces at Sea, and it is notable that it is in many terms similar
to the First Convention in the nature of the protection that it confers. 38 But the Second Convention
also provides that the Hospital Ships must be protected and respected, but not attacked or
captured.46 The provisions of these Two Geneva Conventions were supplemented by and
reaffirmed in the Protocol I, 1977, Parts I and II.

30
Article 14, Convention (I) for the Amelioration of the Condition of the Wounded and the Sick in Armed Forces in
the Field, Aug. 12, 1982.
31
The Third Geneva Convention of 1949 deals with the protective provisions for the Prisoners of War (Has been
discussed later).
32
Supra Note 37, Article 15.
33
Id, Article 16. See also, Article 122, Geneva Convention (III) on Prisoners of War, 12.08.1949, regarding
establishment of the POW Information Bureau.
34
Id, Article 19.
35
Id, Article 22.
36
Id, Chapter IV.
37
Id, Chapter VII, Recognizes Emblems such as the Red Cross, the Red Crescent and the Red Diamond (after Protocol
III).
38
Articles 12 and 13, Geneva Convention (II) on Wounded, Sick and Shipwrecked of Armed Forces at Sea,
12.08.1949, provide for humane treatment of the members of armed forces and organized militia. 46 Id, Chapter III.
CHAPTER I THE GENEVA CONVENTIONS

B. THE THIRD CONVENTION:

The Third Geneva Convention of the Four Geneva Conventions of 1949 deals with the rights that
are available to the Prisoners of War during wartime, and within it, it contains a relatively
comprehensive code for the mandate of humane treatment at all times, and in all circumstances.39

This Convention also consists of the definition of the Prisoners of War, and it is a relatively
important, since it is considered to be an extension of the status of Combatants.40 The definition
that has been given under this convention includes members of the armed forces of either of the
parties to the conflict (as well as that of the militias and other volunteer corps forming part of such
armed forces), and members of other militias and volunteer corps, including those of organized
resistance movements, belonging to a party to the conflict provided that the following conditions
are fulfilled: a) being commanded by a person responsible for his subordinates, b) having a fixed
distinctive sign recognizable from a distance; c) carrying arms openly; d) conducting operations in
accordance with the laws and customs of the war.41

The Articles in this Convention heavily reflected what had been learnt by the world in the Second
World War, yet the extent of what groups would still be covered by the Convention was limited
by these Conditions that were then included as a part of the Customary International Humanitarian
Law. As and when the world faced new terrors, such as the rise of Guerilla Warfare in the Third
World and Decolonized Countries, the pressure grew to expand the scope of the definition of the
combatants, at times even to those groups which rarely depict the aforementioned conditions by
practice.42

Articles 43 and 44 of the Protocol (I)43 provide that combatants are the members of the armed
forces of a party to an International Armed Conflict.44 The Protocol (I) further notes that it is an

39
Supra Note 2, Pg. 851.
40
Article 4, Geneva Convention (III) relating to the Treatment of Prisoners of War, Geneva, 12 August, 1949.
41
Article 1 of the Hague Regulations; also have been included as Customary International Humanitarian Law.
42
Supra, Note 47.
43
Article 43, 44, Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of
the Victims of the International Armed Conflicts, on 8 June, 1977.
44
Ibid, Article 1(4), includes IACs as “armed conflicts in which people are fighting against colonial domination and
alien occupation and against racist regimes, in the exercise of their right of self-determination.”
CHAPTER I THE GENEVA CONVENTIONS

obligation upon the combatants to distinguish themselves from the civilian population while in the
middle of the attack45.

It has also been stated under the Convention that if there is any doubt as to the status of any person
committing the belligerent act, and falling into the hands of the enemy, “such people shall enjoy
the protection of such convention, until and unless their status has been determined by a competent
tribunal.”46 However, this was changed later, where it was later stated that any such person shall
still be treated as a prisoner of war, and shall be accorded protection under the Third Geneva
Convention.47

Also, the ‘unlawful combatants’ are those who failed the test as have been given under the
Articles 43 and 44 of the Protocol (I), and thus won’t be accorded the status of prisoners of war
under international humanitarian law.48

While many say that the Convention is based on the belief that the POWs need to be treated as
human beings, but the core belief of the Convention still resided in the legal obligation to keep the
Prisoners of War alive and in good health.49

The Provisions of the Protocol also provide that the prisoners must be treated humanely and must
also not be subjected to acts of insult, and neither shall they be put through acts inciting public
curiosity50, which thus also forbids the country in possession of the POWs to display them on
public display in a humiliating fashion.

Also, once captured, the Prisoners must also be taken immediately far away from the combat zone
to the camps for them to be safe and out of danger.51 But it must be noted that the Prisoners of War

45
Id, Article 44(3).
46
Article 5, Convention (III) relative to the Treatment of Prisoners of War, Geneva, 12 August 1949.
47
Supra Note 51, Article 45.
48
Such people, since they would then receive the status of civilians, would be accorded protection under basic
humanitarian provisions as have been laid down in Articles 45(3) and 75 of Protocol (I).
49
Stated since the Conventions I and III clearly and expressly prohibit the killing of the POWs, and also require them
to taken care of, if wounded.
50
Supra Note 53, Article 13.
51
Supra Note 54, Article 19.
CHAPTER I THE GENEVA CONVENTIONS

are subject to the laws and orders of the States that are detaining them.52 The rest of the Convention
deals with the medical treatment, religious activities, etc.
The Convention also provides that the Prisoners of War shall be released and repatraiated
immediately after the cessation of hostilities.53

C. THE FOURTH CONVENTION:

The Fourth Geneva Convention is concerned with the protection of Civilians in times of War, and
is based on the Hague Regulations54. Although this Geneva Convention was supposed to be an
extension to the pre-1949 rules, this Convention limits itself to the persons “who, at a given
moment and in any moment whatsoever, find themselves, in case of a conflict or occupation, in the
hands of a party to the conflict, or occupying power of which they are not nationals.”55

This convention comes into action immediately on the outbreak of hostilities and ceases to operate
right at the closure of military operations.56

A civilian has been defined as “any person who is not a combatant”, and in cases of doubt, the
person is still necessarily to be treated as a civilian.57 Thus, The Fourth Convention provides for
very advanced set of rules for the protection of such civilians.58

The Protection of Civilians in occupied territories is covered in the Section III of the Part III of the
Fourth Geneva Convention. It states that the Convention is to apply to all the cases of partial or
total occupation ‘of the territory of the High Contracting Party, even if the said occupation meets
with no resistance.’67 To assess that whether a state whose forces are present on the territory of
another state is an occupying power, the International Court of Justice has held that there must be

52
Id., Article 82.
53
Supra Note 54, Article 118.
54
It is attached to the Hague Convention IV on the Law and Customs of War on Land, 1970.
55
Article 4, Geneva Convention (IV) on Civilians, relating to the Protection of Civilians Persons in Time of War,
Geneva, 12 August, 1949.
56
Ibid, Article 6.
57
Supra Note 51, Article 50(1).
58
Supra Note 63, Articles 27-34 (Deals with the rights to the respect for person, honor, convictions and religious
beliefs, and prohibition of torture, cruel and other inhumane treatment.) 67 Supra Note 53, Article 2(2).
CHAPTER I THE GENEVA CONVENTIONS

sufficient evidence to establish that the said authority was in fact established and exercised by the
intervening state in the areas in question.59

The military occupation of any enemy state’s territory is known as ‘belligerent occupation’, and
the International Law has provisions that govern any such occupation, that it can be done in two
particular conditions:

- First, when the former government is no longer capable to publicly exercise its authority
in the area in question, and
- Second, when the occupying power is in position to substitute its own authority for that of
the former government.

However, any such occupation that has been mentioned above shall cease to be in effect as soon
as the power that has occupied the enemy state has been pushed put or has evacuated by its own.

The International Court of Justice, in the Israel/Palestinian Conflict, wherein the Convention was
held to be applicable in the Palestinian Territories which lay before the conflict to the East of the
Green Line60 and which during that conflict were occupied by Israel, and where there was no need
to enquire into the precise legal status of these territories 61 , stated that, “neither the Hague
Regulations, nor the Fourth Geneva Convention, suggests that only territory the title of which is
clear and uncontested can be termed as occupied territory.”62

The Convention also states that the persons protected under the Convention cannot be deprived of
the protection that has been conferred under this Convention due to any material change that may
take place due to occupation or by any agreement between the occupiers and the authorities of the
occupied territories63, prohibits individual or mass forcible transfers and deportation of protected
persons from occupied territories regardless of the validity of reason or motive.64

59
Congo v. Uganda¸ [2005] ICJ Rep 168.
60
The 1949 Armistice Line.
61
Construction of a Wall Case, ICJ Reports, 2004, pp. 136, 177.
62
See also Article 4, Additional Protocol (I) to the Geneva Convention of 1949, states that the application of this
Convention shall not affect the legal status of the parties to the conflict.
63
Supra Note 63, Article 47.
64
Id., Article 49.
CHAPTER I THE GENEVA CONVENTIONS

Other provisions refer to the prohibitions of forced work, and against destruction of personal
properties of people, unless when rendered absolutely necessary.65

65
Id., Articles 51 and 53. Article 64 states that the penal laws of the occupied territory shall remain in force.
CHAPTER II WHERE DOES IHL APPLY?

2. WHERE DOES INTERNATIONAL HUMANITARIAN LAW APPLY

2.1 INTERNATIONAL ARMED CONFLICTS (IACS) & INTERNAL ARMED CONFLICTS

The rules of International Humanitarian Law apply to the armed conflicts, and as can be
appropriately stated, there is no need for a proper declaration of a war or a conflict for the
Conventions to come into action.66 It has been said though, that “any difference arising between
States and leading to the intervention of the members of the armed forces, is an armed conflict.”67
A distinction has historically been drawn between international and non-international armed
conflicts. However, this difference has been breaking down in recent decades. In the sphere of
humanitarian law, this can be seen in the gradual application of such rules to internal armed
conflicts.68
International Humanitarian Law offers two systems of protection: one for international armed
conflict and another for non-international armed conflict. The rules applicable in a specific
situation will therefore depend on the classification of the armed conflict.69
As long there is ambiguity as to what kind of armed conflict has arisen, it becomes difficult to
assess which law should come into force, and there comes up a doubt about the applicability of the
relevant law.
The Appeals Chamber of the Tribunal correctly refused to accept a narrow geographical and
temporal definition of armed conflicts, whether international or internal. It was stated that:

International humanitarian law applies from the initiation of such

armed conflicts and extends beyond the cessation of hostilities until
a general conclusion of peace is reached; or, in the case of internal
conflicts, a peaceful settlement is achieved. Until that moment,

66
Supra Note 2, Pg. 864.
67
Id.
68
Id.
69
Supra Note 23.
CHAPTER II WHERE DOES IHL APPLY?

international humanitarian law continues to apply in the whole

territory of the warring states or, in the case of internal conflicts, the
whole territory under the control of a party, whether or not actual
combat takes place.70

This definition was given in the specific context of the Former Yugoslavia, where there was
witnessed an ambiguity as to whether an international or a non-international armed conflict or
some kind of mixture of the two was involved, thereby issues regarding the law applicable were
seen.
In the above case, however, a rather troublesome situation was created when the Appeals Chamber
classified the conflicts in the Former Yugoslavia as “both internal and international”, and since
such conflicts can both be classified according to both time and place in different manners, this
raised further issues.71
After the Tadic Case, however, there was a rather rapid rise in the acceptance of the application of
the International Humanitarian Law to the Internal Armed Conflicts, which was mainly because
of the rise in the frequency of such conflicts, and the magnitude of brutality increasing in them. 72
Thereby, as the things have come so far, the international community is more willing to let the
international humanitarian law to apply to the internal armed conflicts. In the Tadi´c case73, the
Appeals Chamber (in considering jurisdictional issues) concluded that article 3 of its Statute, which
gave it jurisdiction over ‘violations of the laws or customs of war’, provided it with such
jurisdiction ‘regardless of whether they occurred within an internal or an international armed
conflict’. In its decision, the Appeals Chamber noted that,

It is indisputable that an armed conflict is international if it takes

place between two or more States. In addition, in case of an internal

70
The Tadic Case, Case No. IT-94-1-AR 72; 105 ILR.
71
Supra Note 2, Pg. 865.
72
Id.
73
Supra Note 79.
CHAPTER II WHERE DOES IHL APPLY?

armed conflict breaking out on the territory of a State, it may

become international (or, depending upon the circumstances, be
international in character alongside an internal armed conflict) if (i)
another State intervenes in that conflict through its troops, or
alternatively if (ii) some of the participants in the internal armed
conflict act on behalf of that other State.74
The Appeals Chamber examined the legal criteria for establishing when, in an armed conflict which
is prima facie internal, armed forces may be regarded as acting on behalf of a foreign power thus
turning the conflict into an international one. This led the Chamber to come to a point where they
were faced with the problem to assess the meaning of ‘control’, where rather than the test laid
down in the Nicaragua Case, the Chamber preferred a rather weaker test, g that in order to attribute
the acts of a military or paramilitary group to a state, it must be proved that the state wields overall
control over the group, not only by equipping and financing the group, but also by coordinating or
helping in the general planning of its military activity.84

Accordingly, the line between international and internal armed conflicts may be drawn at the point
at which it can be shown that a foreign state is either directly intervening within a civil conflict or
exercising ‘overall control’ over a group that is fighting in that conflict.75

74
Supra Note 2, Pg. 866. 84 In that case it was held that in order to establish the responsibility of the US over the
‘Contra’ rebels, it was necessary to show that the state was not only in effective control of a military or paramilitary
group, but also that there was effective control of the specific operation in the course of which breaches may have
been committed. In order to establish that the US was responsible for ‘acts contrary to human rights and humanitarian
law’ allegedly perpetrated by the Nicaraguan Contras, it was necessary to prove that the US had specifically ‘directed
or enforced’ the perpetration of those acts.
75
The Kunarac Case, Decision of 12 June 2002, Case No. IT-96-23.
CHAPTER II WHERE DOES IHL APPLY?

2.2 NON INTERNATIONAL ARMED CONFLICTS (NIACS)

Many armed conflicts today are non-international in nature. An NIAC is an armed conflict in which
hostilities are taking place between the armed forces of a State and organized non-State armed
groups, or between such groups. For hostilities to be considered an NIAC they must reach a certain
level of intensity and the groups involved must be sufficiently organized.76
Although the 1949 Geneva Conventions were concerned with international armed conflicts,
Common Article 3 did provide in cases of non-international armed conflicts occurring in the
territory of one of the parties a series of minimum guarantees for protecting those not taking an
active part in hostilities, including the sick and wounded.77
The NIACs may vary from full-scale wars to the relatively minor disturbances, and thus the
applicability of the Geneva Conventions is prejudicial to the political interests of the State in
question, since the absence of any other state involved in the conflict makes a problem in
enforcement of international humanitarian law.78 Not infrequently, a party to a non-international
armed conflict – either a State or an armed group – will deny the applicability of humanitarian law.
Governmental authorities, for example, might disagree that a particular situation qualifies as an
armed conflict.79
The Common Article 3 of the Geneva Conventions, which enumerates the minimum accorded
safeguards to preserve humanity, applies to the situations of non-international armed conflicts as

76
Supra Note 1, at Pg. 19.
77
It was held in the Nicaragua Case that the same is also applicable in the cases of international armed conflicts, to
some extent, if not to the complete extent, in addition to other elaborate sets of rules that also apply to the international
conflicts.
78
Supra Note 2, Pg. 867.
79
Supra Note 22, Pg. 745.
CHAPTER II WHERE DOES IHL APPLY?

well, but only by the virtue of the Article 1.80 It, however only covers the armed conflicts that take
place in the territory of the concerned state party between the armed forces of the state and the
dissident forces.91 However, the internal disturbances, small to medium sized riots, isolated acts of
violence etc. are not covered under this definition of non-international armed conflicts.81
In this context, it must be kept in mind that Additional Protocol II “develops and supplements”
common Article 3 “without modifying its existing conditions of application.82
The Tadic Case stands a really supportive authority in this regards, as in that case it was held that
international legal rules had evolved to regulate these internal conflicts for various reasons, mainly
because of the recent increase in such civil wars, and also because of the increment in the brutality
conducted in such wars.83

However, there may be also situations where there may be an international armed conflict and an
non-international armed conflict in action at the same time, wherein a state which is involved in
an NIAC within its territory against a organized armed group, observes another State taking part
in this conflict from the side of the organized armed group.84 Then in any such situation, the state
with the NIAC taking place within its territory, would then also be within an IAC with the other
State taking part in the NIAC with the organized armed group.

It may also be noted that in situations that are not covered under either internal or noninternational
armed conflicts, such as riots or isolated small scale acts of violence, are covered under the
provisions of human rights law, and not under the Conventions for international humanitarian law.
85

80
The Common Article 3 of the Geneva Conventions was developed with the help of Additional Protocol (II), 1977.
91
Article 1, Paragraph 1, Additional Protocol (II).
81
Id., Article 1, Paragraph 2.
82
Supra Note 1, Pg. 20.
83
Supra Note 2, Pg. 868.
84
Supra Note 93.
85
Supra Note 1, Pg. 21.
 3. THE SYRIAN CIVIL WAR – A CASE STUDY

3.1 THE SYRIAN CONFLICT – THE CAUSE

It may be not wrong to say that the unrest in Syria was one of the late ones in the tide of the other
that flooded the Arabian countries in the years 2010-2011.86 The beginning of unrest in Syria is
often associated with events in March 2011, when youngsters wrote antigovernment graffiti on the
wall of their school in Dara'a, an agricultural town in Southern Syria. 87 The slogan that had been
put up by them meant, “the people want to bring down the regime”. This was meant to be an open
call for a change of regime in the country, and was perceived as a call for democracy and greater
freedom in Syria.

However, this didn’t turn out to be that easy, as these teenagers were arrested and tortured by the
local Governor of Dara’a. This series of events began in March, 2011. This indeed lit the fire for
an inferno, as the events that followed laid the foundation for the rebellions that followed.
People protested these arrests, and they demanded the release of these school children, and they
clashed with the police officials. Things got worse, and within days, the people were demanding
the resignation of President Bashal-Al-Assad, which would have been an end to the near five
decade rule of the Ba’ath Party.88

All efforts that were made by the Syrian Government to curb the uprising, even offers for political
reforms and policy changes, were unsuccessful, and when the Syrian Government saw the anti-
government stretch as long as into April, 2011, they then decided to resort to military response to
this political uprising. 89 However, these military operations, rather than curbing the political

86
Marauhn, Thilo, SAILING CLOSE TO THE WIND: HUMAN RIGHTS COUNCIL FACT FINDING IN SITUATIONS OF ARMED
CONFLICT – THE CASE OF SYRIA, 43 Cal. W. Int'l L.J. 401.
87
See Human Rights Council, Rep. of the Independent Int'l Commission of Inquiry on the Syrian Arab Republic, Para.
27, U.N. Doc. A/HRC/S-17/2/Add.1 (Nov. 23, 2011).
88
See Profile: Syria's ruling Baath Party, BBC NEWS (July 9, 2012), [Link]
18582755 (discussing the Baath Party).
89
Supra Note 97, Pg. 2.
uprising in Dara’a as had been hoped by the government, sparked a nationwide protest, and led to
many more anti-government protests throughout Syria.90

Initially, the protesters did not have military capabilities at their disposal. This, however, changed
when soldiers began to desert from the Syrian army, and the situations worsened when they began
to become an organized group with the defection of the senior officials as well. 91 Political
opposition began to turn into armed insurrection in early June 2011, with rebel attacks on security
forces in Jisrash-Shugur on the Syrian-Turkish border and the government sending troops to
respond. On July 29, 2011, parts of the military opposition announced the formation of the so-
called Free Syrian Army.92
During the first period of the uprising, the inhabitants of Damascus and Aleppo remained largely
uninvolved in the antigovernment protests, and these cities were not affected by the fighting.
However, both cities increasingly suffered from July 2012 onwards. Fighting in Aleppo began on
July 19, 2012.93
Once the country’s economic capital and most-populated city, Aleppo remained of major strategic
importance to all parties. In 2012, the city was effectively divided in two when armed groups
captured the eastern swathe, while the west remained under Government control. Mostly self-
governed by local councils, eastern Aleppo remained a key opposition stronghold, and the battle
for its control was widely regarded as potentially decisive for the broader Syrian conflict.94

The Governments in the Arabian region responded in a rather interesting way, where they primarily
stood in support of the Syrian Government, in the early stages of the uprising. However, the winds
changed when the clashes became more intense, and the wounded and the death toll began to take

90
Id.
91
Id.
92
See About Us, Free Syrian Army, http:// [Link]/en/about-us. Other sources refer to other dates
as the Free Syrian Army's inception. See Guide to the Syrian opposition, BBC News (Nov. 12, 2012), http://
[Link]/news/world-middle-east-15798218.
93
Supra Note 102.
94
Report of the Independent International Commission of Inquiry on the Syrian Arab Republic, Para 21, U.N. Doc.
A/HRC/34/64 (March 24, 2017).
the trend of rise amongst the Syrian population, and these very governments now began to side
with the opposing armed groups.95
In the background of the reactions of these reactions, the United Nations also played its hand in
trying to mitigate the ongoing clashes.
The U.N. Security Council (“Council”) first addressed the situation in Syria on August 3, 2011,
when it issued a presidential statement, expressing “its grave concern at the deteriorating situation
in Syria” and “profound regret at the death of many hundreds of people.”96
The statement by the UNSC condemned the widespread violations of the human rights of civilians
by the Syrian authorities and called it a ‘blatant misuse of force’. However, it did not identify any
prevailing rules of international law to justify the same. With that, the UNSC called an end to all
the violence.97
After the Second109 and the Third98 Presidential Statements that were delivered, the UNSC adopted
a Resolution99, which was the first Resolution that was adopted for the conditions in Syria. Based
on the Resolution 2042, and the proposals made by the Secretary General, the UNSC adopted
another resolution100 on April 2012, and the UNSMIS (U.N. Supervision Mission in the Syrian
Arab Republic) was established. However, the mandate for UNSMIS was not able to be fulfilled,
and thus UNSMIS came to an end on August 19th, 2012.
After three years of military impasse, in September 2015 the Russian Federation began to bolster
government forces on several key battlefronts, and offered a realistic opportunity to break the
deadlock, including in Aleppo, where air strikes were used with the overarching goal of besieging
eastern Aleppo city.101
By mid-July 2016, the only remaining supply line into the city, the Castello road in the north, was
captured by pro-Government forces. In August, armed groups broke the siege by opening a route
in the southern district of Ramouseh though a counter-offensive by pro-Government forces in early

95
Supra Note 97, Pg. 3.
96
Id., Pg. 5.
97
S.C. Presidential Statement 2011/16, paras. 1 & 2, U.N. Doc. S/PRST/2011/16 (Aug. 3, 2011) 109
S.C. Pres. Statement 2012/6, U.N. Doc S/PRST/2012/6 (Mar. 21, 2012).
98
S.C. Pres. Statement 2012/10, U.N. Doc S/PRST/2012/10 (Apr. 5, 2012).
99
U.N.S.C. Resolution 2042 of 2012 (Resolution 2042).
100
U.N.S.C. Resolution 2043 of 2012 (Resolution 2043).
101
Supra Note 105, Pg 7, Para 22.
September retook the supply line and re-established the siege, which lasted until the recapture of
eastern Aleppo in December.102

3.2 RELEVANCE OF IHL IN THE CONFLICT

Some questions arise regarding the Commission's definition of “international humanitarian

law.” Unfortunately, the opening paragraph on the applicability of international humanitarian
law is far too general, by giving a general indication what this body of law might include, rather
than looking at which treaties actually apply to the situation in Syria. This is particularly true for
the Commission's reference to Additional Protocol II.103
However, the Commission did indeed accept the applicability of the International Humanitarian
Law in the Syrian context, in particular the Common Article 3 of the Geneva Conventions, and
also the customary international humanitarian law that is relevant to the non-international armed
conflicts.104
During the course of events that intensified over time in Syria, the Commission could not deny
that it was a condition where the circumstances could easily have been justified to have been of a
non-international armed conflict.117
There still remained an ambiguity initially as to what extent did international human rights law
(IHRL) applied to a situation of armed conflict, in place of international humanitarian law. Later
however, the issue was taken up by the Independent Commission; the commission did not hesitate
in stating as follows:
The applicability of international humanitarian law (IHL) does not replace
existing obligations under international human rights law (IHRL). Rather

102
Id, Pg. 7, Para 24.
103
See Human Rights Council, Rep. of the Independent Int'l Commission of Inquiry on the Syrian Arab Republic,
Annex II, Para. 11, U.N. Doc. A/HRC/21/50 (Aug. 16, 2012)
104
Supra Note 97, Pg. 13. See also, Report of the Independent International Commission of Inquiry on the Syrian
Arab Republic, Pg. 23, Annexure 1, Para 1, U.N. Doc. A/HRC/34/64 (March 24, 2017). 117 Supra Note 103, Pg. 23,
Annexure 1, Para 1.
 both regimes remain in force and are generally considered as
complementary and mutually reinforcing. Where both IHL and IHRL
apply, and can be applied consistently, parties to a conflict were obligated
to do so. In situations where IHL and IHRL were both applicable, the
commission deferred to the application of IHL under the principle of lex
specialis. The specific applicability of each regime is briefly reviewed
below.105
The Commission also noted that throughout the conflict ongoing in Syria, international
humanitarian law remained applicable on all the warring parties, and that its applicability was
triggered the moment the conflict crossed the threshold for qualifying as an armed conflict.106

The Syrian Republic was a party to and had ratified the four Geneva Conventions and the
Additional Protocol I, and thus they were held to binding on the Republic. The major hurdle was
the fact that the Syrian Republic had not ratified the Additional Protocol II, the one that had
specifically dealt with and applied to the situations of non-international armed conflicts. The
Commission nevertheless stated that many existing provision of the customary IHL still
nevertheless applied to non-international armed conflicts, and shall apply to the Syrian Republic,
ever since the conflict began to qualify as a NIAC.107

3.3 RECOMMENDATIONS BY THE COMMISSION

On the basis of its findings, the Commission made the recommendations below.
The Commission recommended that all warring parties:

a. Comply with their obligations under international human rights and international
humanitarian law, including refraining from all indiscriminate and disproportionate
attacks;

105
Id, at Para 2.
106
Id, Para 6.
107
The Commission first determined the existence of a non-international armed conflict in the Syrian Arab Republic
beginning in February 2012. See, e.g., A/HRC/21/50.
 b. End all sieges and related strategies, including starvation and denial of access to
humanitarian aid, including food, water and medicine, that primarily affect civilians;
c. Refrain from future evacuation agreements resulting in the forcible displacement of civilian
populations for military gains;
d. Undertake investigations into the conduct of their forces and make their findings public.

The Commission recommended that the Government of the Syrian Arab Republic:
a. Provide evacuees from eastern Aleppo now living in Government-controlled territory with
adequate and safe living conditions;
b. Allow those choosing to return to their homes in eastern Aleppo to do so in safety, retaining
all property rights and without fear of reprisals or discrimination;
c. Ensure that besieged communities have access to humanitarian aid, in compliance with
Security Council resolutions 2165 (2014), 2191 (2014), 2258 (2015) and 2328 (2016);
d. End all attacks against aid workers and humanitarian facilities, including medical
personnel, hospitals and transport.

The Commission recommends that armed groups:

a. Repudiate extreme elements and apply effective leverage for compliance with international
law;
b. Allow freedom of movement to members of communities living in territories under their
control, including by refraining from using civilians as human shields;
c. Cease indiscriminate shelling of civilian-inhabited areas.

The Commission recommended that international community:

a. Promote efforts to ensure accountability, including by actively supporting the

establishment of the International, Impartial and Independent Mechanism to Assist in the
Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under
International Law Committed in the Syrian Arab Republic since March 2011, in
accordance with General Assembly resolution 71/248;
b. Call upon the Independent Mechanism, once operational, to collect, as a matter of priority,
further evidence and information on the crimes documented by the Commission in the
present report;

c. Curb the supply of weapons to warring parties and their proliferation, particularly cluster
munitions and incendiary weapons, which are indiscriminate when used in
civilianinhabited areas and pose a threat to civilians for years after the cessation of
hostilities;

d. Urges all Member States to reinforce the international legal framework on civilian
protection, including by ratifying relevant treaties, such as the Convention on Cluster
Munitions and the Convention on Prohibitions or Restrictions on the Use of Certain
Conventional Weapons Which May Be Deemed to Be Excessively Injurious or to Have
Indiscriminate Effects;

e. Support the continuation of political processes and negotiations aimed at ending the Syrian
conflict, particularly the efforts of the Special Envoy of the Secretary-General for
Syria to pursue political talks in accordance with the road map stipulated by the Security
Council in its resolution 2254 (2015).
CONCLUSION

Ever since the year 2011, there has been a spiraling increase in the trends of armed conflicts and
violence. Political, ethnic, national or religious grievances and the struggle for access to critical
resources remained at the source of many ongoing cycles of armed conflict, and have sparked
recent outbreaks of hostilities. The turmoil that escalated in parts of the Middle East during the so-
called Arab Spring in 2011 – which degenerated into devastating armed conflicts in Syria, Iraq and
Yemen in particular – was also felt far beyond the region by countries that began to support the
many parties to those conflicts in various ways. In most armed conflicts, civilians continue to bear
the brunt of the hostilities, especially when fighting takes place in densely populated areas or when
civilians are deliberately targeted. Thousands of people are being detained, often outside any legal
framework and often subject to ill treatment or inhuman conditions of detention. The number of
persons going missing as a result of armed conflict is dramatic. The devastation caused by violence
has prompted increasing numbers of people to flee their communities, leaving their homes and
livelihoods behind and facing the prospect of longterm displacement and exile. In 2013, for the
first time since the Second World War, their total number exceeded 50 million people, over half
of whom were IDPs. This negative trend continued in 2014, as conflict situations deteriorated.
Needless to say, the international humanitarian sector is at risk of reaching breaking point.
The brutality and mercilessness of many contemporary armed conflicts is a cause for deep alarm.
Egregious violations of IHL are being committed every day, by both States and non-State parties.
In many situations, this is linked to a denial of the applicability or relevance of IHL. On the part
of non-State armed groups, there is sometimes a rejection of IHL, which some parties do not feel
bound by. In addition to this, recent armed conflicts have seen a rise in the deliberate commission
of violations of IHL by some non-State armed groups and their use of media to publicize those
violations.
It is high time the implementation of the provisions of both codified IHL and the customary
provisions of the same was paid heed to and attempted to be made strictly bound on the member
states. To deny the basic protections of IHL to combatants and civilians is to deny IHL’s core aims
of protecting human life, physical integrity and dignity. Regarding the dramatic situation in Syria,
the difficult question is whether, and to what extent, the Commission could contribute to improving
the situation. While the Commission had to cope with the worsening of the situation anyway, it
sought not to ignore possible violations of international humanitarian law.
The situation as of right now in the Syrian Republic clearly indicates that the commission has so
far been unable to force any compliance by the rebelling troops with the provisions that have been
inscribed under the international humanitarian law. Notwithstanding the extensive war crimes
being committed in Syria, existing tribunals--international or domestic—may have difficulty
issuing charges for many of the most defining breaches of IHL given the lack of positive law
governing NIAC war crimes. Most of the IHL treaties discussed are not applicable to the conflict
in Syria because it remains—at least for now--a non-international armed conflict.
BIBLIOGRAPHY
BOOKS

- MALCOLM N. SHAW, INTERNATIONAL LAW, 7TH ed. 2016.

- SIR IAN BROWNLIE, BROWNLIE’S DOCUMENTS ON HUMAN RIGHTS, (Sir Ian Brownlie & S.
Goodwin-Gill), 6TH ed. 2010.
- MANOJ KUMAR SINHA, HANDBOOK OF LEGAL INSTRUMENTS ON INTERNATIONAL HUMAN
RIGHTS AND REFUGEE LAWS, 2014.
- DR. S.K. KAPOOR, INTERNATIONAL LAW & HUMAN RIGHTS, 19th ed. 2014.

INTERNET DOCUMENTS

- Forum, Syria, MAPPING WAR CRIMES IN SYRIA, 92 Int'l L. Stud. 282

- INTERNATIONAL HUMANITARIAN LAW – ANSWERS TO ALL YOUR QUESTIONS, International
Committee of the Red Cross.
- Henckaerts, Jean-Marie & Doswald-Beck, Louise, CUSTOMARY INTERNATIONAL LAW,
VOLUME I, RULES, International Committee of the Red Cross, 2009.
- INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY
ARMED CONFLICTS, 32IC/15/11, 32nd International Conference of the Red Cross and Red
Crescent, Geneva, October 2015.
- Marauhn, Thilo, SAILING CLOSE TO THE WIND: HUMAN RIGHTS COUNCIL FACT FINDING
IN SITUATIONS OF ARMED CONFLICT – THE CASE OF SYRIA, 43 Cal. W. Int'l L.J. 401.
- INTERNATIONAL HUMANITARIAN LAW AND THE CHALLENGES OF CONTEMPORARY ARMED
CONFLICTS, Document prepared for 30th ICRC Conference, Switzerland, Volume 89
Number 867, September 2007, at Page 720.
- Report of the Independent International Commission of Inquiry on the Syrian Arab
Republic, Para 21, U.N. Doc. A/HRC/34/64 (March 24, 2017).

----------------------------