Could Tehran Face Charges of Mercenary Crimes?

26 June 2016

By Amir Taheri

''We have to take a hard look at our role in the war in Syria,'' says General Mohsen Kazemaini who commands the Islamic Revolutionary Guard's forces in Tehran. ''We have entered the war to keep our own enemies away from our borders.''

What is significant in Gen. Kazemaini's statement, made last Tuesday, is his outright admission that the Islamic Republic is taking an active part in the Syrian war with combatants rather than mere ''advisers'' as hitherto claimed.

Last Thursday for example, former IRGC commander Genera; Mohsen Rezai told a TV interview in Tehran that Syria had repeatedly asked for Iran to send troops. ''We told the Syrians that we can't send soldiers,'' Rezai said. ''But we can send advisers.'' In contrast, Rezai claimed that the Iraqi Kurdish leader Massoud Barzani had asked Iran for troops to prevent ISIS from seizing Erbil. ''We sent forces and prevented ISIS from entering Erbil.''

According to an analyst, a survey of contradictory statements by Iranian military and political leaders would endorse Gen. Kazemaini's view rather than that of Gen. Rezai: Iran is fighting directly in this war. ''If Iran is involved in combat in Syria the question would be: in what capacity?'' says Bahman Darabi, a military analyst. ''Under international law and the Geneva Conventions, there are strict rules regarding forces engaged in combat in a war.''

Without a clear, legally constructed status, Iranian forces in Syria could end up being classified as ''mercenaries'' and thus deprived of the protections provided for regular combatants under Geneva Conventions.

Mercenaries are defined in Protocol 1 of Rule 108 of the Geneva Convention as combatants who are not nationals of any of the states involved in a war nor fight under the flag of a member state of the United Nations. Unless they are formally incorporated into regular units of one of the states engaged in fighting, they would be regarded as freelancers that forgo the right to the status of combatant or prisoner of war. However, they may not be convicted and sentenced without prior trial.

Mercenaries are punishable for their acts under the laws of any state that captures them. However, most members of the UN have legislated separate laws regarding mercenaries which, though based on international law and Geneva Conventions, include great latitude for a range of treatments. National laws, however, do not deprive the UN of the right to initiate proceedings for war crimes and crimes against humanity in the case of mercenaries.

The original definition of mercenaries under the Geneva Convention has since been spelled out in greater detail through Additional Protocols which has been endorsed by a majority of UN members.

Additional Protocol I defines a mercenary as a person who:
a) is specially recruited locally or abroad in order to fight in an armed conflict;
b) does take a direct part in the hostilities;
c) is motivated to take part in the hostilities essentially by the desire for private gain and, in fact, is promised, by or on behalf of a Party to the conflict, material compensation substantially in excess of that promised or paid to combatants of similar ranks and functions in the armed forces of that Party;
d) is neither a national of a Party to the conflict nor a resident of territory controlled by a Party to the conflict;
e) is not a member of the armed forces of a Party to the conflict; and
f) has not been sent by a State which is not a Party to the conflict on official duty as a member of its armed forces.

''Iranian leaders would do well to take extra care not to face the possibility of their forces ending up as mercenaries charged with war crimes,'' says Darabi.

Estimates of Iranian military presence in Syria vary. President Bashar Al-Assad's opponents claim that Iran has 80,000 men in Syria. US Secretary of State John Kerry puts the number at ''around 3000.''

Forces sent by Iran to fight in Syria could be divided into two broad categories.The first consists of regular Iranian forces including the IRGC and its addendum the Quds Crops, the regular army's ''Green Beret'' Special Forces, the Mobilization of the Dispossessed (Baseej) and both the regular navy and the IRGC naval units. Best estimates put the total number at around 15,000 at the start of 2016.

The problem for these Iranian forces is that their presence in Syria is not covered by any Status of Forces Agreement. Syria and the Islamic Republic did sign a Defence Cooperation Agreement in 2007 that covers a wide range of issues from joint staff conversation to exchange of intelligence and supply of weapons and training. However, it does not envisage the presence of armed Iranian troops on Syrian soil in the context of a war. That would require a Status of Forces Agreement (SFA).

Iranian leaders claim that their forces are there at the invitation of the Syrian government. This is difficult to imagine. The reason is that under Iranian law no Iranian soldier is allowed to fight under a foreign commander. This was why Iran refused to join the US in the wars in Korea and later in Vietnam. But for Iranian troops in Syria to have their own command structure they must either be recognized as a force of occupation, acceptable under international law, or be invited by the Syrian government in the context of a SFA. But even if there is a SFA, Iranian troops would remain under Iranian command.

However, if their status is not clearly defined, they risk ending up being branded as mercenaries with the possibility of facing proceedings for war crimes. Since there is no status of limitation for cases of war crimes and crimes against humanity, individual Iranian troops and their commanders could face proceedings until the end of their lives.

The second form of Iran's military presence in Syria consists of fighters sent by the Lebanese branch of Hezbollah, maybe around 20,000, plus Afghan, Pakistani and Iraqi ''volunteers for martyrdom''. They are grouped in three segments.

The first consists of the Fatimyoun, a mainly Afghan Hazara unit that started as a brigade, 6000 men, but has now bene built up to a division, 12000 men.

The second segment consists of Defenders of the Harems, a mixture of Pakistani, Iranian, Arab and even Latin American fighters now built up to the level of a division.

Finally, there is a new Iraqi unity, known as Nujaba (The Noble Ones) which the Tehran media refer to as a battalion, may be around 2000.
All the non-Iranian and non-Syrian fighters claim they are in Syria for religious and ideological reasons. This may well be the case. But they all come very close to the international definition of mercenaries. They are not citizens of Syria, are recruited by a foreign power, Iran, and received payment and other material advantages in recompense for their services.

The Lebanese Hezbollah and Afghan, Pakistani and Iraqi fighters can escape being classified as mercenaries in two ways: being enlisted in the regular Syrian army or be put under formal Iranian command after Tehran and Damascus sign a SFA.

Amir Taheri was born in Ahvaz, southwest Iran, and educated in Tehran, London and Paris. He was Executive Editor-in-Chief of the daily Kayhan in Iran (1972-79). In 1980-84, he was Middle East Editor for the Sunday Times. In 1984-92, he served as member of the Executive Board of the International Press Institute (IPI). Between 1980 and 2004, he was a contributor to the International Herald Tribune. He has written for the Wall Street Journal, the New York Post, the New York Times, the London Times, the French magazine Politique Internationale, and the German weekly Focus. Between 1989 and 2005, he was editorial writer for the German daily Die Welt. Taheri has published 11 books, some of which have been translated into 20 languages. He has been a columnist for Asharq Alawsat since 1987. Taheri's latest book "The Persian Night" is published by Encounter Books in London and New York. 

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