97. The commission is concerned that the armed violence in the Syrian Arab Republic
risks rising to the level of an “internal armed conflict” under international law. Should this
occur, international humanitarian law would apply. The commission recalls that the
International Court of Justice has established that human rights law continues to apply in
armed conflict, with the law of armed conflict applying as lex specialis in relation to the
conduct of hostilities.
98. According to the Appeals Chamber of the International Criminal Tribunal for the
Former Yugoslavia, an armed conflict exists when there is a resort to armed force between
States or protracted armed violence between governmental authorities and organized armed
groups, or between such groups within a State. The Trial Chamber in Tadić and subsequent
cases interpreted the test for internal armed conflict as consisting of two criteria: the
intensity of the conflict, and the organization of the parties to the conflict, as a way to
distinguish armed conflict from banditry, unorganized and short-lived insurrections or
terrorist activities, which do not fall within the scope of international humanitarian law.
99. The commission was unable to verify the level of the intensity of combat between
Syrian armed forces and other armed groups. Similarly, it has been unable to confirm the
level of organization of such armed groups as the Free Syrian Army. For the purposes of
the present report, therefore, the commission will not apply international humanitarian law
to the events in the Syrian Arab Republic since March 2011.
100. Nevertheless, crimes against humanity may occur irrespective of the existence of an
armed conflict and the application of international humanitarian law. The commission
describes below its reasons for concluding that members of the Syrian military and security
forces have committed crimes against humanity in 2011.
The way I read it; because there are no observers they can't make that determination despite the mounds of dead.
I wish the United States would sign the Rome Statute already!