Progressive Development of International Human Rights Law: The Reports of the Independent International Commission of Inquiry on the Syrian Arab Republic

Tilman Rodenhäuser is a PhD candidate at the Graduate Institute in Geneva.

The crisis in Syria has entered its third year and violence has risen to unprecedented levels. This is not only the case for acts committed by regime forces but also for violence by members of different armed groups fighting the Assad regime. At a time when the situation in Syria was still marked by the crackdown of regime forces on protesters, the Human Rights Council decided in August 2011 to establish a Commission of Inquiry. The Commission is mandated to investigate all alleged violations of international human rights law since March 2011, to establish facts, and to identify perpetrators in order to ensure accountability in the future. Documenting human rights violations at the different stages of the crisis, the Commission of Inquiry made some remarkable findings, particularly on the law applicable to acts of violence committed by opposition forces. First, in a situation where international humanitarian law did not apply because the Commission was unable to establish the existence of an armed conflict, it found that armed groups were bound by human rights obligations constituting peremptory international law. Second, in its recent report of February 2013, the Commission found armed groups in violation of Article 4 of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict.

In the February 2012 report the Commission found that the armed groups operating in Syria at the time were not sufficiently organized to be parties to an armed conflict. Consequently, international humanitarian law did not apply and only human rights law applied with regard to violence in Syria at the time. Most commentators understand human rights law as binding on States and not armed groups, unless the armed groups have quasi-State abilities. In contrast, the Commission explained that, “at a minimum, human rights obligations constituting peremptory international law (ius cogens) bind States, individuals and non-State collective entities, including armed groups. Acts violating ius cogens – for instance, torture or enforced disappearances – can never be justified.” The Commission made this finding without reference to any specific capacity of the armed groups or control over territory. With this finding the Commission entered uncharted waters: until then, UN bodies had only considered non-State actors to have human rights obligations where they exercised de facto control over territory (see the Commission of Inquiry Report on Libya). This conclusion by the Commission is to be commended: in a situation where armed groups challenge State power to an extent that the State is no longer able to protect citizens against human rights violations by this group, international law should not be silent on the obligations of these groups.

The second progressive finding by the Commission of Inquiry report with regard to human rights law applicable to armed groups is alo interesting. Considering the use of children under the age of 18 in hostilities, in its recent 2013 report the Commission found armed groups in violation of the Optional Protocol to the Convention on the Rights of the Child on the involvement of children in armed conflict. This is surprising. As a treaty between States, the CRC-OPAC can only be signed by States, not by non-State actors. While one could wonder how, then, opposition groups could violate this protocol, the Commission clarified that CRC-OPAC “by its terms applies to non-State actors.“ Scrutiny of the pertinent provision of the protocol would be warranted – but is unfortunately not provided by the Commission.

Art. 4 (1) CRC-OPAC states that “[a]rmed groups that are distinct from the armed forces of a State should not, under any circumstances, recruit or use in hostilities persons under the age of 18 years.” To use the term ‘should’, which is rather suggestive, instead of ‘shall’, which usually expresses the binding character of a rule, indicates that the norm is not creating a legal obligation on armed groups. However, the wording might not be as clear-cut. Andrew Clapham has argued that when addressing an entity not party to the protocol, ‘should’ and ‘shall’ both express an obligation. This interpretation is supported by the formulation that NSAGs should not recruit persons under the age of 18 “under any circumstances”, which suggests a legally binding obligation for non-State armed groups. In addition to these arguments, a look at the travaux préparatoires reveals that States were divided on the question whether this treaty should contain legal obligations for armed groups. In any case, the finding by the Commission of Inquiry lends support to an interpretation that considers non-State armed groups to be bound by the prohibition of recruiting or using in hostilities persons under the age of 18 under Art. 4 (1) CRC-OPAC.

In the absence of an investigation by the International Criminal Court, the reports of the Commission of Inquiry on Syria provide extensive insight in the ongoing armed conflict and shed light on the continuing violations of international law. Faced first with a situation in which it was unclear whether the laws of armed conflict apply, the Commission of Inquiry decided to take a progressive approach and apply peremptory human rights law to armed groups. Moreover, as it is debated whether the minimum age of recruitment under international law lies at 15 or 18 years, the Commission took again a protective stance and applied the 18 years limit under the CRC-OPAC to armed groups. However, the Commission’s reasoning would be more convincing if it had provided a more substantive discussion of the applicability of certain international human rights law provisions to armed groups.