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

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.