January 30, 2014

VIII. Legal Framework

International humanitarian law, the laws of war, governs fighting between Syrian government forces and opposition armed groups. This law binds all parties to an armed conflict, whether they are states or non-state armed groups.[76]

The Syrian government has sought to justify the destruction of property in various locations in Syria referring to illegal construction and urban planning efforts. But the circumstances of the demolitions, as detailed in this report, indicate that the demolitions were related to the ongoing armed conflict. While Syrian government forces have destroyed property for legitimate military reasons in some cases, Human Rights Watch found that the large-scale destruction of property in the cases detailed in this report violated Syria’s international legal obligations.

The laws of war governing the methods and means of warfare are primarily found in the Hague Regulations of 1907 and the First Additional Protocol of 1977 to the Geneva Conventions (Protocol I).[77] Although neither treaty formally applies to the internal armed conflict in Syria, most of the provisions of both are considered reflective of customary law.[78] Also applicable is article 3 common to the four Geneva Conventions of 1949 (Common Article 3), which concerns the treatment of civilians and combatants who are no longer taking part in the fighting.[79]

Central to the law regulating conduct of hostilities is the principle of distinction, which requires parties to a conflict to distinguish at all times between combatants and civilians. Operations may be directed only against combatants and other military objectives; civilians and civilian objects may not be the target of attack.[80]

Civilian objects have been defined as all objects that are not military objectives.Military objectives are those objects which “by their nature, location, purpose or use make an effective contribution to military action and whose total or partial destruction, capture or neutralization, in the circumstances ruling at the time, offers a definite military advantage” [emphasis added].[81] In cases of doubt there is a presumption that objects normally dedicated to civilian purposes, for example houses and other dwellings, schools, places of worship, and hospitals, are not subject to attack.[82] Civilian objects remain protected from attack, unless and only for such time that they become military objectives. Once a civilian object that is a military objective, such as a house used as a military headquarters, ceases being used to further the military aims of the adversary, it is no longer subject to attack.[83]

Deliberate, indiscriminate or disproportionate attacks against civilians and civilian objects are prohibited. Attacks are indiscriminate when they are not directed at a specific military objective or employ a method or means of warfare that cannot be directed at a military objective or whose effects cannot be limited.[84] A disproportionate attack is one in which the expected incidental loss of civilian life and damage to civilian objects would be excessive in relation to the concrete and direct military advantage anticipated.[85]

In the conduct of military operations, parties to a conflict must take constant care to spare the civilian population and civilian objects from the effects of hostilities.[86] Parties are required to take precautionary measures with a view to avoiding, and in any event minimizing, incidental loss of civilian life, injury to civilians, and damage to civilian objects.[87]

Before conducting an attack, parties to a conflict must do everything feasible to verify that the persons or objects to be attacked are military objectives and not civilians or civilian objects.[88] In its Commentary to Protocol I, the International Committee of the Red Cross (ICRC) explains that the requirement to take all “feasible” precautions means, among other things, that those conducting an attack are required to take the steps needed to identify the target as a legitimate military objective “in good time to spare the population as far as possible.”[89] The United Kingdom military manual illustrates the rule as follows:

If, for example, it is suspected that a schoolhouse situated in a commanding tactical position is being used by an adverse party as an observation post and gun emplacement, this suspicion, unsupported by evidence, is not enough to justify an attack on the schoolhouse.[90]

The Hague Regulations forbid during hostilities the unnecessary destruction of the enemy’s property. [91] The Geneva Conventions prohibit, as a grave breach during international armed conflicts, the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.” [92] The prohibition on “wanton destruction” is a longstanding rule of customary international law, dating back at least to the US Lieber Code of 1863, the first modern codification of the laws of war. [93]

The rule of military necessity was defined in the Lieber Code, and later adopted by the ICRC, as “the necessity of those measures which are indispensable for securing the ends of the war, and which are lawful according to the modern law and usages of war.”[94] In other words, military necessity cannot be used as an excuse to violate explicit law-of-war provisions, because the requirements of military necessity have already been incorporated into law-of-war rules.[95] Military necessity incorporates the fundamental legal obligation to avoid damage to civilian property by distinguishing military objectives from civilian objects, only permitting attacks on the former, and prohibiting such destruction if the expected civilian harm is disproportionate to the direct military advantage anticipated.

The concept of military necessity thus rejects measures that are viewed as a means to justify an otherwise unlawful attack, are not intended to defeat the enemy or that violate the laws of war by excessively damaging civilian objects in relation to the concrete and direct military advantage anticipated from the attack. While the rule of military necessity grants military planners considerable autonomy about the appropriate tactics for carrying out a military operation, this autonomy remains subservient to the laws and customs of war. [96]

Human Rights Watch found that in the incidents investigated in this report, the destroyed properties were not military objectives as the term is widely understood. Thus, even where the Syrian government asserted a military rationale for the destruction of the property, the objects still did not meet the requirements for a military objective and thus were not subject to attack or destruction.

Human Rights Watch distinguishes these cases from those in which civilian property is a military objective, such as when combatants use residential houses for planning, staging of attacks, and storage of weapons and ammunition.

As noted, a civilian object becomes subject to attack as a military objective when it makes an effective contribution to military action and its destruction in the circumstances ruling at the time provides a definite military advantage. These criteria are critical for determining whether the destruction of property is lawful. Thus, according to the US army field manual’s regulations for destruction in the context of hostilities, there must be a “reasonably close connection between the destruction of property and the overcoming of the enemy’s army.”[97]

In some instances detailed above, it appeared that the Syrian government forces destroyed property either because of its past use as a military objective, that is for possible punitive reasons, or because of its predicted future use as a military objective, that is for anticipatory reasons. International humanitarian law prohibits the punitive destruction of property and places sharp limits on what constitutes a military objective’s future use.

Destruction of property that is no longer or was previously used as a military objective is not permitted. With regard to recently captured areas, the UK military manual states:

[O]nce the defended locality has surrendered or been captured, only such further damage is permitted as is demanded by the exigencies of war, for example removal of fortifications, demolition of military structures, destruction of military stores, or measures for the defence of the locality. It is not permissible to destroy a public building or private house because it was defended.[98]

One respected academic commentator has likewise criticized as a matter of law the destruction of houses for punitive purposes:

Destruction of houses as a (legitimate) integral part of military operations must be distinguished from demolitions of residential buildings carried out as a post-combat punitive measure.… [I]t is wrong to believe that, once used for combat purposes, a civilian object (like a residential building) is tainted permanently as a military objective. As long as combat is in progress, the destruction of property . . . is permissible, if rendered necessary by military operations. Yet, subsequent to the military operations, destruction of property is no longer compatible with modern [law of international armed conflict].[99]

A civilian object can be a military objective if the concrete advantage it provides at the time is of an anticipatory nature. Thus, amilitary unit can destroy a house that would block fields of fire during an expected and imminent enemy attack. Nonetheless, the presumption that a civilian object is not a military objective remains. Thus, acting on the basis of possible enemy intentions is an insufficient basis for attacking a civilian object. The above commentator writes that “field intelligence revealing that the enemy intends to use a particular school as a munitions depot does not justify an attack against the school as long as the munitions have not been moved in.” He adds: “Purpose is predicated on intentions known to guide the adversary, and not on those figured out hypothetically in contingency plans based on a ‘worst case scenario.’”[100]

As the ICRC’s authoritative Commentary on Protocol I states, “it is not legitimate to launch an attack which only offers potential or indeterminate advantages.”[101]Likewise, the authors of the New Rules for Victims of Armed Conflicts note that the military advantage must be “concrete and perceptible” and not “hypothetical and speculative.”[102]

The Eritrea Ethiopia Claims Commission, commenting on the destruction of civilian property by Ethiopian forces retreating from Eritrean territory, stated: “The Commission does not agree that denial of potential future use of properties like these, which are not directly usable for military operations, as are, for example, bridges or railways, could ever be justified under Article 53 [on the destruction of property].”[103]

According to the above commentator, “Certain objects are normally (by nature) dedicated to civilian purposes and, as long as they fulfill their essential function, they must not be treated as military targets.”[104] Objects such as civilian dwellings and schools may be military objectives when they are making an “effective contribution to military action…. The dominant consideration ought to be ‘the circumstances ruling at the time.’”[105]

Other academic commentators explain that the criterion that civilian objects be considered as offering a definite military advantage in the circumstances ruling at the time “is crucial”:

Without this limitation to the actual situation at hand, the principle of distinction would be meaningless, as every object could, in abstracto and under possible future developments, become a military objective. It would suffice that in future enemy troops could occupy a building and transform it into a military objective.[106]

Where destruction is permitted as a matter of imperative military necessity, it must not be disproportionate. That is, as noted above, it cannot be expected to cause damage to civilian objects that would be excessive in relation to the concrete and direct military advantage anticipated. As the ICRC Commentary to the Fourth Geneva Convention states, “whenever it is felt essential to resort to destruction, the occupying authorities must try to keep a sense of proportion in comparing the military advantage gained with the damage done.” [107]

Lastly, in civilian areas that have not been under control by opposition forces, or where there is no imminent threat of such military use, a party to a conflict may have valid security reasons for destroying civilian property. Parties have an obligation, to the extent feasible, to remove civilian objects under their control from the vicinity of military objectives.[108] This could include destroying civilian structures near to army bases, airports and other military objectives. It is unlawful for such destruction to cause disproportionate civilian harm.

The eviction of the population and the destruction of homes may be subject to international human rights law, particularly the right to housing under the International Covenant on Economic, Social and Cultural Rights.[109] Those evicted outside of active hostilities are entitled to adequate notice, genuine consultation, and adequate compensation or alternative housing.[110]

With respect to individual responsibility, serious violations of international humanitarian law committed with criminal intent are war crimes. During non-international armed conflicts, war crimes include “[d]estroying or seizing the property of an adversary unless such destruction or seizure be imperatively demanded by the necessities of the conflict,”[111] and collective punishments.[112]

Criminal intent has been defined as violations committed intentionally or recklessly.[113] Individuals may also be held criminally liable for attempting to commit a war crime, as well as assisting in, facilitating, aiding, or abetting a war crime. Responsibility may also fall on persons planning or instigating the commission of a war crime.[114] Commanders and civilian leaders may be prosecuted for war crimes as a matter of command responsibility when they knew or should have known about the commission of war crimes and took insufficient measures to prevent them or punish those responsible.[115]

The Rome Statute of the International Criminal Court includes wanton destruction as a war crime.[116] The International Criminal Tribunal for the former Yugoslavia (ICTY) concluded that the elements of the war crime of wanton destruction are met where: (i) the destruction of property occurs on a large scale; (ii) is not justified by military necessity; and (iii) the perpetrator acted with the intent to destroy the property or in reckless disregard of its likely destruction.[117] The ICTY elaborated that “the devastation of property is prohibited except where it may be justified by military necessity. So as to be punishable, the devastation must have been perpetrated intentionally or have been the foreseeable consequence of the acts of the accused.”[118]

Under international humanitarian law, states have a duty to investigate war crimes allegedly committed by members of their armed forces and other persons within their jurisdiction. Those found to be responsible should be prosecuted before courts that meet international fair trial standards or transferred to another jurisdiction to be fairly prosecuted.[119]

The laws of war also provide for a state to make full reparations, including directly to individuals, for the loss caused by violations of the laws of war.[120]

[76]For a detailed discussion on applicability of international humanitarian law to the conflict in Syria, see Human Rights Watch, Syria – “They Burned My Heart,” May 3, 2012, http://www.hrw.org/reports/2012/05/02/they-burned-my-heart-0. The International Committee of Red Cross (ICRC) concluded in July 2012 that the situation in Syria amounts to a non-international armed conflict. See: ICRC, “Syria: ICRC and Syrian Arab Red Crescent maintain aid effort amid increased fighting,” July 17, 2012, http://www.icrc.org/eng/resources/documents/update/2012/syria-update-2012-07-17.htm (accessed February 2, 2013). International human rights law, including the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR), also continue to be applicable during armed conflicts. These treaties guarantee all individuals their fundamental rights, many of which correspond to the protections afforded under international humanitarian law including the prohibition on torture, inhuman and degrading treatment, non-discrimination, and the right to a fair trial for those charged with criminal offenses. The ICECR addresses the rights to housing, highest attainable standard of health, and employment, among other rights.

[77]Hague Convention IV - Laws and Customs of War on Land: 18 October 1907 (Hague Regulations), 36 Stat. 2277, 1 Bevans 631, 205 Consol. T.S. 277, 3 Martens Nouveau Recueil (ser. 3) 461, entered into force Jan. 26, 1910; Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I) of 8 June 1977, 1125 U.N.T.S. 3, entered into force December 7, 1978. The “means” of combat generally refer to the weapons used, while “methods” refer to the manner in which such weapons are used.

[78]See, e.g., Yoram Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict (Cambridge: Cambridge University Press, 2004), p. 11 ( “Much of the Protocol may be regarded as declaratory of customary international law, or at least as non-controversial.”). See generally International Committee of the Red Cross (ICRC), Customary International Humanitarian Law (Cambridge: Cambridge Univ. Press, 2005).

[79]See the four Geneva Conventions of 1949, all of which entered into force on October 21, 1950.

[80]See ICRC, Customary International Humanitarian Law, rule 1, citing Protocol I, art. 48. According to ICRC, Commentary on the Additional Protocols, “The basic rule of protection and distinction is confirmed in this article. It is the foundation on which the codification of the laws and customs of war rests.” Ibid., p. 598.

[81]See ICRC, Customary International Humanitarian Law, rules 7 and 8, citing Protocol I, art. 52(2).

[82]See ICRC, Customary International Humanitarian Law, rule 10, citing Protocol I, art. 52(3).

[83]Under the Rome Statute of the International Criminal Court (ICC Statute), it is a war crime to intentionally direct attacks against civilian objects, except during the time they are military objectives. ICC Statute, art. 8(2)(b)(ii).

[84]See ICRC, Customary International Humanitarian Law, rules 11 and 12, citing Protocol I, art. 51.

[85]See ICRC, Customary International Humanitarian Law, rule 14, citing Protocol I, arts. 51(5)(b) and art. 57.

[86]See ICRC, Customary International Humanitarian Law, rule 15, citing Protocol I, art. 57(1).

[87]See ICRC, Customary International Humanitarian Law, rule 17, citing Protocol I, art. 57(2)(a)(2).

[88]See ICRC, Customary International Humanitarian Law, rule 16, citing Protocol I, art. 57(2)(a).

[89]See ICRC, Commentary on the Additional Protocols, pp. 681-82.

[90]UK Ministry of Defence, The Manual of the Law of Armed Conflict (Oxford Univ. Press, Oxford: 2004), p. 55.

[91]Hague Regulations, art. 23(g).

[92]First Geneva Convention, art. 50; Second Geneva Convention, art. 51; Fourth Geneva Convention, art. 147.

[93]United States, General Orders No. 100 (Lieber Code), April 24, 1863, arts. 15-16 (“Military necessity does not admit … the wanton devastation of a district. … [I]n general, military necessity does not include any act of hostility which makes the return to peace unnecessarily difficult.”) See also ibid., art. 22 (“The principle has been more and more acknowledged that the unarmed citizen is to be spared in person, property, and honor as much as the exigencies of war will admit”); art. 38 (“Private property, unless forfeited by crimes or by offenses of the owner, can be seized only by way of military necessity”).

[94]Lieber Code, art. 14. The ICRC in its Commentary defines military necessity as “the necessity for measures which are essential to attain the goals of war, and which are lawful in accordance with the laws and customs of war.” ICRC, Commentary on the Additional Protocols, p. 393. The “four foundations” of military necessity, according to the ICRC, include “urgency, measures which are limited to the indispensable, the control (in space and time) of the force used, and the means which should not infringe on an unconditional prohibition.” Ibid., paragraph 1396.

[95]See, e.g., US Army Field Manual 27-10: The Law of Land Warfare, p. 4.

[96]ICRC, Commentary on the Additional Protocols, p. 396.

[97]US Army, Field Manual 27-10: The Law of Land Warfare (Department of the Army, July 1956), pp. 23-24.

[98]UK Ministry of Defence, The Manual of the Law of the Law of Armed Conflict, p. 88.

[99]See Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, pp. 218-19 (citations omitted).

[100]Ibid., p. 90.

[101]ICRC, Commentary to the Additional Protocols, para. 2024.

[102]Bothe, Partsch and Solf, New Rules for Victims of Armed Conflicts, p. 326; see also Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, pp. 87-92; and Michael N. Schmitt, Washington University Global Studies Law Review, “Effects-Based Operations and The Law Of Aerial Warfare,” vol. 5, no. 2, 2006, p. 278.

[103]Eritrea Ethiopia Claims Commission, Partial Award (Central Front), 43 ILM 1265 (2004), cited in Dinstein, The International

Law of Belligerent Occupation, p. 198.

[104]Dinstein, The Conduct of Hostilities under the Law of International Armed Conflict, pp. 90-91.

[105]Ibid., p. 91.

[106]Marco Sassoli and Lindsey Cameron, “The Protection of Civilian Objects – Current State of the Law and de lege ferenda,” in Natalino Ronzitti and Gabriella Venturini (eds), The Law of Air Warfare: Contemporary Issues (Utrecht: Eleven Int., 2006), p. 48.

[107] ICRC, Commentary to the Fourth Geneva Convention, p. 302.

[108]See ICRC, Customary International Humanitarian Law, rule 24, citing Protocol II, art. 13(1) (“civilians shall enjoy general protection against the dangers arising from military operations”).

[109]International Covenant on Economic, Social and Cultural Rights, G.A. res. 2200A (XXI), 21 U.N. GAOR Supp. (No. 16) at 49, U.N. Doc. A/6316 (1966), 993 U.N.T.S. 3, entered into force Jan. 3, 1976, art. 11.

[110] See generally UN Committee on Economic, Social and cultural Rights, “The right to adequate housing (art.11.1): forced evictions,” General comment No. 7, UN Doc. HRI/GEN/1/Rev.7 (1997).

[111] See ICRC, Customary International Humanitarian Law, rule 156, citing ICC Statute, art. 8(2)(e)(xii). This offense during international armed conflicts is referred to as “wanton destruction,” described in the Fourth Geneva Convention, art. 147, as the “extensive destruction and appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”

[112] See ICRC, Customary International Humanitarian Law, rule 156, citing Protocol II, art. 4.

[113]See ICRC, Customary International Humanitarian Law, p. 574, citing, e.g. International Criminal Tribunal for the former Yugoslavia (ICTY), Delalic case, Case no. IT-96-21-T, Judgment, Trial Chamber II, Nov. 16, 1998.

[114]See ICTY, Kordic and Cerkez (Trial Chamber), February 26, 2001, paras. 346-47, excerpt available at http://www.hrw.org/reports/2004/ij/icty/3.htm.

[115]See ICRC, Customary International Humanitarian Law, pp. 558-63.

[116]ICC Statute, art. 8(2)(e)(xii).

[117]See ICTY, Kordic and Cerkez (Trial Chamber), February 26, 2001, paras. 346-347, excerpt available at http://www.hrw.org/reports/2004/ij/icty/3.htm.

[118]See ICTY, Blaskic (Trial Chamber), March 3, 2000, para. 183, excerpt available at http://www.hrw.org/reports/2004/ij/icty/3.htm.

[119]See ICRC, Customary International Humanitarian Law, pp. 607-11, citing the Geneva Conventions and the ICC Statute.

[120]See ICRC, Customary International Humanitarian Law, p. 551, citing the draft Articles on State Responsibility, art. 33.