Home International Criminal Law Crimes Against Humanity The Airstrike Killing Members of the Syrian Armed Forces was not an International Crime

The Airstrike Killing Members of the Syrian Armed Forces was not an International Crime

Published on October 19, 2016        Author: 

The US coalition formed to combat the Islamic State was recently involved in a drone strike in Syria which mistakenly killed at least 62 Syrian government troops. The air strike involved US, British, Danish and Australian forces. An investigation into how the incident occurred is currently underway.

The attack was described by Syria’s president Bashar al-Assad as ‘flagrant aggression’ and led to the Russians calling an emergency meeting of the UN Security Council. Suggestions have since been made by some that at least the British nationals involved in the attack could face the possibility of an International Criminal Court (ICC) investigation.

The purpose of this post is not to explore the likelihood or unlikelihood of an ICC investigation. Rather, it is to consider whether an international crime has been committed in attacking and killing the Syrian soldiers.

There are three possibilities: firstly, that the act was a war crime; secondly, that it was a crime against humanity committed during an armed conflict; and thirdly, that it was a crime against humanity committed during peacetime.

For a war crime to occur, there must be an armed conflict. The first question is therefore whether an armed conflict was taking place between the US coalition and Syria.

The threshold for there being an international armed conflict (‘IAC’) is low. Common Article 2 of the Geneva Conventions states that they apply to ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognised by one of them.’ The 2016 Commentary to the First Geneva Convention (‘the Commentary’) refers to the often quoted 1958 commentary stating that:

‘Any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place…or how numerous are the participating forces…’ (para. 236).

However, the coalition forces’ position is that the attack against the Syrian forces was an accident, rather than an act of aggression against the Syrian regime. The Commentary states that:

‘It is important…to rule out the possibility of including in the scope of application of humanitarian law situations that are the result of a mistake or of individual ultra vires acts, which…are not endorsed by the State concerned. Such acts would not amount to an armed conflict’ (para. 241).

However, it also states that:

‘Should [a] third State’s intervention be carried out without the consent of [a] territorial State, it would amount to an international armed conflict between the intervening State and the territorial State’ (para. 260).

The ICRC’s position on this point is controversial, and the ICC would certainly face a challenge in determining whether this incident amounted to an IAC or not.

Say, however, for the sake of argument, it is possible to argue that the coalition forces’ act of attacking the Syrian soldiers amounted to an IAC and triggered the application of international humanitarian law (IHL), was a war crime committed in attacking the Syrian soldiers?

Well, no. In an IAC, members of state armed forces are combatants. They have the right to directly participate in hostilities (Article 43(2)), Additional Protocol I to the Geneva Conventions) and the corollary of this right is that they constitute legitimate military targets unless they are hors de combat. In the absence of information that the Syrian soldiers were hors de combat at the time of the attack, attacking them was a legitimate military action, not a war crime.

Turning to the second possibility of a crime against humanity committed during an armed conflict. If we assume once again for the sake of argument that an armed conflict was occurring between the two sides, the attack against the soldiers does not amount to this crime for two reasons.

Firstly, to qualify as a crime against humanity under Article 7 of the Statute of the International Criminal Court, the act must be ‘committed as part of a widespread or systematic attack’. A one-off incident like this falls short of this requirement.

Secondly, for a crime against humanity to occur, the attack must be ‘directed against any civilian population’. During times of armed conflict, members of the armed forces are not members of the civilian population (Article 50(1), Additional Protocol I), and, as we have seen, they are legitimate targets unless they are hors de combat.

Once military personnel become hors de combat, they still do not form part of the civilian population. However, the ICTY Appeals Chamber has held that persons hors de combat can be victims of crimes against humanity providing that the attack against them forms part of an overall attack against a civilian population (Martić and Mrskić). Thus, even if the Syrian soldiers had been hors de combat at the time of the drone attack, a one-off attack purely against them, rather than against a civilian population, could not constitute a crime against humanity.

Finally, what if there was no armed conflict between the coalition forces and the Syrian regime, could the attack amount to a crime against humanity committed during peacetime? Again, a single attack against the Syrian soldiers falls short of the ‘widespread or systematic’ requirement. As for the ‘civilian population’ element, it is as yet unsettled whether members of military forces are members of the civilian population or not during peacetime for the purposes of crimes against humanity. This matter is currently under deliberation at the Extraordinary Chambers in the Courts of Cambodia in Cases 003 and 004. For my part, I have argued in an amicus brief to the court that in peacetime members of the armed forces do constitute members of the civilian population. It remains to be seen what the court decides.

The coalition forces’ act of killing the Syrian soldiers was a terrible error and it is imperative that a thorough, impartial investigation takes place. However, those who call the action an international crime are mistaken.

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16 Responses

  1. Mark Pryce

    Excellent analysis. Perhaps you could also consider the fact that the attack took place during a declared ceasefire. Does this either change the status of the IAC or render the Syrian troops hors de combat?

  2. These three scenarios are relatively straightforward. A more interesting one arises if we assume that there is no IAC between the intervening States and Syria. Apparently, some take that position. In that case, the Syrian armed forces would be civilians when viewed from the perspective of the intervening States. If the strike was carried out in the knowledge that these were Syrian forces, then this would create an IAC. But if the strike was carried out on the assumption that these were not Syrian forces, but fighters belonging to some other party, then we are in ‘precautions in attack’ territory. There is no specific war crime of failing to do everything feasible to verify a target, so from a criminal perspective, we will have to fall back on proportionality and then get into a discussion about intent. As an added twist, and still keeping with the assumption that there is no IAC, could the intervening States argue that Syrian armed forces are DPH-ing civilians because they DPH in the NIAC between the intervening States and various NSAs active in the Syrian conflict? Or would that effectively be an admission of an IAC? Some food for thought…

  3. Agnieszka Jachec Neale

    Aurel, I think you are dangerously linking categorising armed conflict with criminal law assessment of the conduct. The conduct would not be prosecutable under Rome Statue as it only provides in NIACs for other serious crime of intentional targeting of civ pop/ individual civilians who do not directly participate in hostilities. I do not see how does it strengthen an argument for IAC?

  4. Thanks Agnieszka! Take the following hypothetical. 1. The US etc argue that there is no IAC between them and Syria. Consequently, Syrian forces are not enemy combatants from their perspective. 2. However, those Syrian forces are engaged in a NIAC and may well be engaged in acts which constitute DPH . 3. The US etc too are engaged in that NIAC. Consequently, in so far as (a) Syria and the US etc are parties to the same NIAC(s) and (b) Syrian forces are engaged in acts constituting DPH at the time, does it follow that those Syrian forces could be characterised as DPH-ing civilians from the US etc perspective?

    Of course, it would be absurd – and wrong as a matter of law – to conclude that the answer is yes. Leaving aside mistakes, a direct attack on Syrian forces by the US etc would make IAC the applicable legal regime. That was the point of my last question.

    All I was suggesting, playing devil’s advocate, is that proceeding from the assumption that there is no IAC produces an even more interesting set of legal questions…

  5. Hi all,

    Lots of food for thought here. A few reactions:

    (1) I read Galic as finding a customary war crime of directing an attack while recklessly disregarding the risk that the object of attack is civilian (paras 54-56)

    (2) Are the US and Syria parties to the same NIAC? Or do we have two (more, actually) parallel NIACs: Syria-ISIL and US-ISIL?

    (3) Syrian forces may not be DPH-ing in the US-ISIL NIAC, depending on how we interpret belligerent nexus. After all, Syrian forces are not trying to help ISIL in its NIAC with the US. And, generally, you can target a civilian who is DPH only if they are performing acts designed to harm you and benefit your adversary.

    Complex issues. Do let me know what you think.

    Very best,


  6. I’m not even going to begin to answer those questions…! As I suggested, the fun begins once you argue there is no IAC. :O)

  7. Philippe Flory


    Nice article, very interesting in many ways. I was wondering why you left out the crime of agression. If there is no IAC between the US and Syria, wouldn’t that be the most likely qualification for this act (if we disregard the ICC being bound by a SC qualification)? Then of course, the U.S position considering the act as a mistake could disqualify the crime of agression. Just wondering what were your thoughts on the matter.
    Thank you

  8. Joanna Nicholson

    Many thanks for all of your comments.

    Mark- if there was an IAC and the Syrian soldiers were killed during a ceasefire, my view would be that IHL would nevertheless apply to the incident. The military personnel were not hors de combat because they were not in the power of an adverse party, trying to surrender or incapacitated in any way (as far as we know anyway).

    Aurel and Adil, you are right, new and interesting avenues are opened up if you argue that there is a NIAC taking place. I am not the right person to comment on the classification of the conflict/s in Syria. However, it does raise the question of whether the Syrian soldiers had civilian status if Syria was not a party to an armed conflict with the US.

    As I mentioned in the post, it is not certain whether military personnel are part of the ‘civilian population’ as regards crimes against humanity committed in peacetime. Could the same apply as regards IHL and therefore war crimes? Can military personnel ever be civilian? My view is that they can and that military personnel who belong to an armed group that are not a party to the conflict are civilians for the purposes of IHL and should be taken into account in proportionality assessments etc. However, if so, that could mean that military personnel can never be civilian for the purposes of crimes against humanity, but can be for the purposes of a war crime. Is that a problem? I have to think about it a bit more…

  9. Andreas Filis

    Why is this act of aggression even framed in these terms when it ought to initially be assessed as to its lawfulness under the provisions of the Chapter VII, UN Charter), or am I missing something?

  10. Agnieszka Jachec-Neale

    Adil, Aurel- this is interesting indeed- I mean NIAC side of considerations.

    First Galic- I would say one needs to be careful how one sees a specific case from specific judicial institution as finding a customary war crime in existence, especially without a wealth of evidence to support such conclusion. Nonetheless I read pars. 54-56 as court’s deliberation focused on intent/ ‘the willfulness’ required for the existence of Art 3 ICTY statute crime of willful making civilians as object of attack and not so much on the customary nature of this specific crime. They conclude that this includes, in par 57, indiscriminate attacks against civ pop not DPH, which seems to be at the core of Galic case and which they indeed find of customary nature.

    Attack on Syrian army, on the other hand, seemed to be quite discriminate but I see an issue somewhere else.

    I suppose two questions arise: a) whether Syrian army were DPHing at the time of attack if one sees Syrian army conduct occurring during one or more NIACs and b) if SO, whether the Syrian army must be DPH-ing against US for the attack by US to be under the scrutiny for a possible war crime or other violation of LOAC (as framed by Rome Statute)in NIACs. If they were not engaged in any hostilities during at the time of attack and/or if they were not DPH-ing against US then could US attack be qualified as unlawful attack on civilians?

    So if US does not see them enemy combatants and they were not engaged in hostilities against US at the time of attack were they merely ‘civilians’? Both US and Syria see ISIL/ISIS as adversary so if Syrian army was engaging in hostilities against ISIS/ISIL then one may argue that they would not necessarily be ‘adversary’ as far US is concerned. An if Syrian army was fighting rebel groups at the time of attack? Well, then depends which group it is and how close it is to US, I suppose. I would think it would have been up to US to determine if the Syrian army were adversaries at the time of the attack in question.

    Both US and UK were quick to indicate a possible mistake in targeting, whether to thwart any impressions as to intentionally engaging Syrian army in hostilities as ‘adversaries’ (and thus rebutting the argument towards IAC with Syria as seen from their side and Syrian army did not seem to subsequently engage US, well not yet, which to me also point out to a lack of IAC as seen by both sides) or not to be accused of attacking ‘civilians’ not engaged in hostilities against them.

  11. Joanna, on the question whether military personnel not involved in an armed conflit are civilians. The GCs and AP I refer to armed forces of a party to the conflict. Art 1 of AP II does not use the exact phrase but ends up in the same place. So at first sight, military personnel beloning to a State not party to an IAC or NIAC, but caught up in it and in the applicability of LOAC (which we need, otherwise the civilian v member of armed force would not apply), can only be a civilian. That makes sense from a principled perspective: under the principle of distinction, you are either a civilian or not. But it is counterintuitive: it is somewhat surreal to describe an organised fighting force as civilians. However, as I suggested, it would be even more surreal in a State-on-State context, and wrong as a matter of law, to describe such an organised force as DHP-ing civilians.

    Of course, legal principles are sometimes surreal. So at first sight, we might have to settle with calling the armed forces of States not party to a conflict, but caught up in it, civilians.

    I say ‘at first sight’, because there are provisions of LOAC which apply to the armed forces in times of peace. Article 127 GC III on dissemination, for instance, refers to the armed forces of the high contracting parties to the Convention. So that seems to take care of the surreal situation that emerged at first sight: under LOAC, the armed forces of a State are the armed forces of a State, whether in times of peace or in times of armed conflict. Which suggests that the armed forces of a State are civilians neither in times of armed conflict nor in times of peace. Trouble is, in times of armed conflict, they are not the armed forces of a party to the conflict either.

    Which, finally, leaves us with the question: if they are not civilians nor armed forces of a party to the conflict, what are they, from the perspective of LOAC?

  12. Aida Ziganshina

    Can I ask why we ignore the ceasefire here?

  13. Aida – because academics like to go off on a tangent, I suppose. Since a ceasefire is not a definite end to hostilities, it does not materially alter the status of persons on the ground.

  14. Alessandra Asteriti

    Joanna, thanks for comprehensive analysis, but I also wonder why you did not include the crime of aggression, as others have also noted (and I see there is no answer)? After all, that is the claim made by Syria. Are we now supposed to completely ignore States and their claims, if we do not like them?

  15. Joanna Nicholson

    Once again, many thanks to you all for your excellent comments.

    Aurel, I completely agree with your analysis, and I don’t know the answer to this intriguing puzzle. As I’ve said, I am very interested to see what the ECCC says about this in the context of CvH, although it will have little or no bearing on the LOAC.

    Philippe and Alessandra, to be perfectly honest, I had not considered the crime of aggression, I was too busy concentrating on whether crimes had been committed against the person of the Syrian soldiers, so to speak. Maybe your suggestion would warrant another blog post? As you suggest Philippe, there seems to have been a lack of knowledge and intent on the part of the US here, which means that the crime of aggression had not occurred.

    Aida, as for my ignoring the ceasefire, my view is that IHL would nevertheless apply, and the status of persons as civilians/combatants did not change. If, for sake of argument, the ceasefire meant that IHL did not apply, then the only international crime (barring I realise now the crime of aggression) would be a CvH in peacetime, which I discuss in the post.

    Thanks again.


  16. Alessandra Asteriti

    Thanks Joanna, you are right, maybe there is scope for another post just on that. It just would have seemed to me the logical starting point, as that is the accusation moved by Assad, who might indeed have his own interests in not entering the ground of war crimes or crimes against humanity. However, it also seems to me that, as a matter of law, undoubtedly there needs to be also an analysis of the ius ad bellum.
    Syria has become, sadly, not only a military and anti-terrorism strategies testing ground, but also the ground for testing to what extent international law can be said to bear grave violations (and, let us be clear about this, from all sides) without breaking. Or maybe it has broken, and we are standing on its ashes.

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