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Trying to Make Sense of the Senseless: Classifying the Syrian War Under the Law of Armed Conflict

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Trying to Make Sense of the Senseless: Classifying the Syrian War Under the Law of Armed Conflict TRYING TO MAKE SENSE OF THE SENSELESS: CLASSIFYING THE SYRIAN WAR UNDER THE LAW OF ARMED CONFLICT David Wallace, Amy McCarthy, & Shane R. Reeves1 I. INTRODUCTION ....................................................................................... 556 II. BACKGROUND TO THE CURRENT CONFLICT ......................................... 557 A. A Brief Overview of Syria’s Political History ............................ 557 B. Other Contributing Factors to the Conflict ................................. 559 i) Drought/ Economic Instability Prior to Arab Spring ......... 559 ii) Arab Spring – Domino Effect ............................................. 560 iii)Syrian Uprising ................................................................. 561 III. ACTORS IN THE SYRIAN CIVIL WAR .................................................... 562 A. Free Syrian Army ....................................................................... 562 B. Islamic Front ............................................................................... 565 C. Hay’at Tahrir al-Sham (formerly Jabhat al-Nusra) ..................... 565 D. ISIS ............................................................................................ 567 E.Kurdish Popular Protection Units (YPG & SDF) ....................... 568 F.Syrian Armed and National Defense Forces (NDF) ................... 569 G. State and Non-State Allies of Syria: Russia, Iran, & Hezbollah. 570 H. U.S. and other International Actors ............................................ 571 I. Summary ...................................................................................... 574 IV. A GENERAL OVERVIEW OF CONFLICT CLASSIFICATION ..................... 574 A. Why International Law Classifies Conflicts ............................... 574 B. Classifying Conflicts: International or Non-International? ......... 577 C. Parallel, “Internationalized,” & Transitory Armed Conflicts ..... 582 V. CLASSIFYING THE SYRIAN CONFLICT ................................................... 585 A. Is Syria an Armed Conflict? If so, What Kind? .......................... 585 B. How About an International Armed Conflict? ........................... 590 1. Colonel Dave Wallace is a Professor and the Head, Department of Law at the United States Military Academy, West Point New York. Professor Amy McCarthy is an Assistant Professor in the Department of Law at the United States Military Academy. Lieutenant Colonel Shane Reeves is an Associate Professor and Deputy Head, Department of Law at the United States Military Academy. The views expressed here are personal views and do not necessarily reflect those of the Department of Defense, the United States Army, the United States Military Academy, or any other department or agency of the United States Government. The analysis presented stems from academic research of publicly available resources, not from protected operational information. 556 Michigan State International Law Review [Vol. 25.3 C. So What Type of Armed Conflict Exists in Syria Again? .......... 593 VI. CONCLUSION ....................................................................................... 594 I. INTRODUCTION The violence in the Syrian war continues unabated after the most recent effort by the United States and Russia to facilitate a partial cease- fire failed.2 The conflict, now entering in its sixth3 year, has exacted an immense toll on the people of Syria. Approximately half the Syrian population has been forced to leave their homes, including 4.9 million refugees who have fled to nearby Lebanon, Turkey, Jordan, Iraq and Egypt.4 Millions in Syria require humanitarian aid, many of them children.5 Unemployment has risen dramatically6 and life expectancy has dropped approximately 20 years.7 The humanitarian tragedy caused by the Syrian war makes attempts to characterize the conflict a seemingly abstract and irrelevant exercise. However, classifying the conflict is not just an academic endeavor; it is a condition precedent in determining the legal responsibilities and obligations of those engaged in the hostilities. By clearly identifying these rights and duties, conflict participants are put on notice that they are bound by the well-established humanitarian principles embedded within the law of armed conflict and responsible for any violations. Classifying the Syrian hostilities is therefore a critical first step towards 2. See, e.g., Anne Barnard, Cease-Fire in Syria Crumbles as Government Airstrikes Kill Dozens in Northwestern Town, N.Y. TIMES, Apr. 20, 2016, at A9 (stating that the partial cease-fire has “crumbled” and the goals of the “chief international sponsors of the talks, the United States and Russia, have dissipated.”). 3. See Richard Johnson, Visualizing the 220,000 Lives Lost in Syria, WASH. POST (Mar. 29, 2015), http://www. washingtonpost.com/graphics/world/syria-220000/. 4. Syria Regional Refugee Response, U.N. HIGH COMM’R FOR REFUGEES, http://data.unhcr.org/syrianrefugees/regional.php (last updated Apr. 6, 2017). 5. Syria Overview, WORLD BANK, http://www.worldbank.org/en/country/syria/overview (last visited May 23, 2015). 6. Id. 7. Lucy Westcott, Syrian Life Expectancy Drops Over 20 Years in Four Years, NEWSWEEK (Mar. 11, 2015, 4:37 PM), http://www.newsweek.com/2015/03/27/syrian- life-expectancy-drops-two-decades-four-years-313145.html. 2017] Classifying the Syrian War under the Law of Armed Conflict 557 reducing the brutality of the conflict and ensuring accountability for those participants who ignore their legal obligations. In hopes of promoting both humanity and accountability this article intends on answering the question: what type of conflict is taking place in Syria? To conduct this analysis it is important to understand the political history of Syria and thus the article begins with a brief historical background section. Sections on the various state and non-state actors battling within Syria as well as a general overview of how conflicts are classified under international law follows. The article concludes with a classification determination for the Syrian hostilities and a reminder that all parties to the conflicts are obligated to comply with the law of armed conflict. II. BACKGROUND TO THE CURRENT CONFLICT A. A Brief Overview of Syria’s Political History Understanding Syria’s political history is essential to fully comprehend the modern conflict. The area now known as Syria was under Ottoman rule until World War I.8 Following the empire’s collapse, the League of Nations created a mandate recognizing Syria, which was to be ruled temporarily by France before final recognition of independence.9 Thus began 26 years of French rule, categorized by heavy-handed military occupation and forced regime changes.10 The British forced the French out of power in 1941.11 The period following independence was tumultuous for the Syrian government, with a series of military coups and ousted dictators.12 In 1970, Hafez al-Assad, father of the current leader Bashar al-Assad and then Defense Minister, seized power.13 Assad, a member of the Alawi religious minority and the 8. William R. Polk, Understanding Syria: From Pre-Civil War to Post-Assad, ATLANTIC (Dec. 10, 2013), http://www.theatlantic.com/international/archive/2013/12/ understanding-syria-from-pre-civil-war-to-post-assad/281989. 9. Id. 10. See id. 11. Id. 12. Id. 13. Id. 558 Michigan State International Law Review [Vol. 25.3 socialist Baath party,14 eventually held a referendum that solidified his position as president.15 Assad’s approach to governance was greatly informed by his affiliation with the Baath party which originated from a liberal student ideology developed in opposition to French rule.16 The underlying ideological basis of the movement was unity and particularly the valuing of “Arabism” above all other dividing factors, including religious sectarianism.17 It also endorsed modern secular values, including rights for women.18 In primary opposition to the Baath Party in Syria was the conservative Muslim Brotherhood, an Islamic movement which espoused the idea that Syria must be a Sunni Muslim nation.19 Indeed, a majority of the population was and is currently Sunni, and many Sunnis consider the Alawis, of which the al-Assad family belongs, to be heretics.20 The Assad regime forcefully cracked-down on opposition groups.21 The Muslim Brotherhood led an uprising against the government in 1982.22 In response, the regime suppressed the opposition with violence, culminating in the seizure of the city of Hama, headquarters of the Muslim Brotherhood.23 Under orders from Assad, the Syrian military killed between 10,000 and 20,000 people, many of them innocent civilians, during the siege.24 Al-Assad died in 2000 and his son Bashar became president by referendum vote.25 Bashar al-Assad inherited an authoritarian regime which was known to have pervasive corruption.26 Many Syrians hoped that the new regime would usher in a period of reform, and in the months 14. Id. 15. Id. 16. Id. 17. Id. 18. Id. 19. Id. 20. See id. 21. See Deborah Amos, 30 Years Later, Photos Emerge from Killings in Syria, NPR (Feb. 2, 2012, 12:41 PM), http://www.npr.org/2012/02/01/146235292/30-years- later-photos-emerge-from-killings-in-syria. 22. Id. 23. DAVID W. LESCH, SYRIA: THE FALL OF THE HOUSE OF ASSAD 7 (2012). 24. Id. 25. Id. at 3–4. 26. Id. at 5. 2017] Classifying the Syrian War under the Law of Armed Conflict 559 following Bashar’s ascendency to the presidency, the country saw a rise in more open political discourse.27 What some have called the “Damascus Spring” of
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