Blood Law

The International Committee of the Red Cross is the legally recognized custodian of the laws of war and thus, among its other prerogatives, the arbiter of the semantics of both interstate and internal conflict. At the same moment that parts of Damascus are now free-fire zones, the ICRC has finally declared that the conflict in Syria is a "civil war" under international law. In the short term, at least, this is unlikely to have much immediate effect on the fighting in that country, nor are the rebels likely to welcome the designation — which for the average fighter, merely confirms the obvious — as much as they would, say, welcome more military help from abroad, not to mention a full-scale international intervention. In any case, terminologically speaking, the ICRC is a latecomer to the party, but there are sound reasons for the organization having decided to wait before rendering a verdict. At least in theory, an ICRC finding has important legal implications for both sides in the fighting, whereas the declarations of other actors are more expressions of opinion than fact.

Tellingly, the other principal actors in the Syrian conflict have shown no such restraint. The United Nations has been using the term "civil war" for months; the Assad regime has spoken of the insurrection in terms of terrorism; the leaders of the Free Syrian Army and other elements of the insurgency have described the conflict in the language of liberation. But all sides are clear that their conflict is one for control of the Syrian state, which is about as good a definition of civil war as it is possible to come by. But this begs the question: if fighters on the ground are convinced they are fighting a civil war, should anyone care all that much about the ICRC’s demarche one way or the other?

Perhaps surprisingly, the answer is yes. To be sure, such exercises in nominalism can indeed be the meaningless intellectual pyrotechnics that their detractors believe them to be. And there is no question that the terms by which conflicts are designated do not always matter. But at other times — and the Syrian case is one of them — how a conflict is described can matter, desperately. Anyone doubting this need only think back to the Clinton administration’s frantic effort at the U.N. in the spring and summer of 1994 to prevent the Security Council from using the word "genocide" to describe the catastrophe then unfolding in Rwanda. Washington did so because it believed — even if many international lawyers did not — that by declaring what was taking place in the Great Lakes region of Africa was indeed a genocide would impose an affirmative legal obligation under the U.N. Genocide Convention of 1948, which had finally been ratified 40 years later by the United States. At the same time, the French government was also resisting the term, though more out of its connection to the Hutu power regime that was instigating the genocide than out of any worries about the designation requiring an intervention.

Rwanda is scarcely the only relevant example. The debate over when and under what conditions it is legitimate for outside actors to intervene militarily in the internal affairs of countries deemed to be abusing their own populations — a global argument that, for better or worse, culminated in the adoption of the doctrine of the so-called Responsibility to Protect (R2P) — has revolved around legally binding definitions as much, if not more, than about moral sentiments. The law may be an ass, but to paraphrase John Locke’s celebrated description of reason, international law may be very well all we have to limit the horrors of war and the crimes committed by governments against their own peoples. This is because even the most callous great powers know that arguments about whether a conflict is a rebellion or an act of terrorism may help determine whether their efforts in response succeed or fail — and most certainly what their efforts will be. If the years since 9/11 hold any lessons, they should at least have taught us that even torturers want legal opinions that justify their deeds.

In the Syrian case, the ICRC’s declaration has real world implications both for the belligerents and for outside actors. On the ground in Syria itself, the designation of the conflict as a civil war broadens the categories under which both sides can be prosecuted for war crimes under international humanitarian law, since while prosecutions for crimes against humanity can take place whatever the nature of the conflict, the broader category of war crimes can be applied only when a state of war has been found to exist. It was because of this, not only because of the murderous denialism so often attributed to the Assad dictatorship, that Syrian officials at the United Nations fought so hard to prevent the term civil war from being used, and international supporters of the insurrection pushed so zealously for its adoption, even though, as a number of human rights officials both inside and outside the U.N. have pointed out, the rebels are thought to have committed atrocities too. Again, this distinction between the various statutes under which abusers can be prosecuted may seem like a technicality, but it is anything but one. Indeed, the gravity of the usage was such that in mid-June, reportedly under Russian pressure, U.N. Secretary General Ban Ki-moon overruled his head of peacekeeping operations, Hervé Ladsous, who had used the term, and declared that the world body would not "characterize the conflict." The ICRC’s decision draws a line under that debate, and, whether wittingly or unwillingly, delivers one more blow to the Assad regime by countering its claim that it is only battling terrorists in the pay of outside forces. 

Given that war crime prosecutions are unlikely to take place while the conflict in Syria rages on, and Assad and his immediate circle believe, rightly, that they are fighting for their own survival, an International Criminal Court indictment is unlikely to rank high on their list of concerns. But at a time when — as numerous recent defections show — many other Syrian officials must be contemplating whether to remain loyal to the regime or to defect, the possibility of an indictment for war crimes could certainly be a consideration. To be sure, technically the ICRC’s judgment applies to regime and insurgency alike, but in practice its weight is likely to fall most heavily on the government side, not least because the opposition has a "friend in court" in the United States, France, Turkey, Saudi Arabia, and Qatar.

As the Libyan case shows, the International Criminal Court is far more likely to prosecute those its powerful members oppose (or, indeed, have overthrown) than those they have supported diplomatically, economically, and militarily. And anyone who does not think the law is as much shaped by political pressure as statute — whether it is the U.S. Supreme Court judgment on the Affordable Care Act, the German Constitutional Court’s current consideration of the legality of Germany’s participation in various European financial bailout mechanisms, or the decisions at The Hague of whom to indict and to whom to give a pass — has probably not been paying attention. With the exception of Russia and Iran, the major world powers as well as important elements of the U.N. Secretariat have either explicitly or implicitly come out for the rebels, and designating what is now taking place (whether or not the ICRC intended to do so) as "civil war" establishes a moral and institutional equivalence between the government and the insurgents that serves to partly legitimize the rebellion and delegitimize the Assad regime.

This is not to deny that the ICRC was on solid ground when it concluded that the Syrian conflict is now a civil war. To the contrary, given the fact that the fighting has now reached Damascus, such a judgment was all but inescapable. But even if one chooses to believe that the ICRC acted purely on impartial legal grounds (which does not seem all that likely, since, to put it charitably, the organization’s history is hardly one free of political considerations, we should not confuse intention with effect.

The practical effect of the ICRC’s action will be pro-insurrection, or, at least anti-Assad. That is why it is being so warmly welcomed in Washington, Paris, and Ankara. And if one believes that any other outcome besides the fall of the Assad regime is unacceptable, then the ICRC’s decision is bound to seem just in both the legal and the moral sense of the word. But history is not a morality play, much as supporters of the insurrection in Syria have chosen to portray it that way. The back story to the ICRC decision is more complicated. But perhaps, as Bismarck said, no one should look too closely at the making of law or sausages.