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June 14, 2012

Civil War Designation for Syria Would Trigger Humanitarian Protections

by Margaret Besheer

This week a senior U.N. official said the situation in Syria could be characterized as a civil war, adding his voice to that of several foreign ministers and other diplomats.  

U.N. peacekeeping chief Hervé Ladsous' remarks to two reporters made news worldwide.

Asked if the situation in Syria is a civil war now, Ladsous replied, "Yes, I think one can say that."

Last week, U.N.-Arab League mediator Kofi Annan made a similar assessment.

"Given the level of violence and the actors on the ground, you could say we are drifting, if we are not already, in a sort of a civil war," said Annan.  "All efforts are being made to ensure that if it were to become a full-blown civil war, it doesn't spread to the neighbors."

On Wednesday, U.S. Secretary of State Hillary Clinton said Syria is "spiraling toward civil war," while the French foreign minister, Laurent Fabius, said "if you cannot call it a civil war, there are no words to describe it."

But what changes if the world deems the 15-month-old conflict a civil war?

Georgetown University Law Center adjunct professor Gary Solis says a civil war designation would trigger the Geneva Conventions on conducting war, specifically protections in Common Article 3.

"And Common Article 3 provides basic protections for those who are out of the combat, for example, soldiers who have surrendered or who have been wounded and are captured; for civilians; for any non-combatants. Common Article 3 provides basic protections and that is why it is so important. And so to say there is a civil war suggests that Common Article 3 now applies and that is significant of course for the victims of the civil war," said Solis.

But Solis adds a very important caveat.

"The problem, however, is that there is no supra-national body, including the U.N., that can say with authority, 'all right this is a civil war; this is not a civil war.' There is no international body which can give a binding opinion that this is indeed a civil war," Solis explained.

He says the international community needs to establish a united consensus through the United Nations and organizations such as the International Committee of the Red Cross (ICRC) to credibly designate conflict a civil war.

The U.N. Security Council has been divided on the Syrian situation. Russia and China have resisted calls for stronger measures such as international sanctions to help end the violence. But the council is united in its support for Kofi Annan's mediation efforts and voted unanimously to dispatch 300 unarmed U.N. observers to monitor the conflict.

The International Committee of the Red Cross (ICRC) does not use the term "civil war" in describing armed conflicts. It uses the legal term, which is "non-international armed conflict."

ICRC Middle East spokesman Hicham Hassan says the ICRC uses two criteria to assess whether a conflict qualifies as a non-international armed conflict - the intensity of fighting and the organization of armed groups.

"If we take intensity, for example, it means the means and methods that are used in the combat, it means the casualties, it means what kinds of weapons are used - all those things go inside the intensity factor," said Hassan.  "And if we talk about the organization of the armed groups, what we look at, the question we ask ourselves is, 'Is there one armed group operating across the country or across certain areas with one determined leadership?'"

In April the ICRC assessed that a state of non-international armed conflict exists in parts of Syria, but not across the entire country.

"Why is it important to determine what kind of situation it is? It is simply to determine what rules apply. And why is it important to determine what rules apply? It is simply to afford people and potential victims of armed conflict the best protection possible. That is the aim of this classification the ICRC gives," said Hassan.

He says the ICRC has notified both the Syrian government and opposition of its assessment and reminded them of their obligations under international humanitarian law.  He adds that the ICRC has access to "almost all" areas affected by the fighting.

The U.N. estimates more than 9,000 Syrians have been killed since government forces began to suppress opposition protests calling for political reforms last year. The United States and other governments have repeatedly called for Syrian President Bashar al-Assad to halt the fighting and step down.