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Home Archive for category "Syria"

The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?: A Reply

Published on March 27, 2017        Author: 

 

This post is written as a reply to the interesting contribution made by Elvina Pothelet on the topic of forced displacement in Syria. In her article, Elvina examined the legal foundation for the claim that the evacuation of Eastern Aleppo amounts to the war crime of forced displacement. I would like to build on this work, but distinguish my arguments in two respects. First, by also approaching the case from the perspective of a charge of crimes against humanity, under Article 7(1)(d) and second, by arguing that contrary to Elvina’s interpretation, the ‘ordering’ requirement found in Article 8 (2)(e)(viii) should in fact be interpreted more liberally, in light of three counter arguments.

Forced Displacement as a Crime Against Humanity – Article 7(1)(d)

As with any assessment of this nature, it is undertaken on the basis of information freely available. With those responsible for displacing, in my view being the Syrian regime officials for their actions in Eastern Aleppo, not those who brokered or signed the evacuation agreement. With this in mind, I shall outline how the elements of Article 7(1)(d) are satisfied.

Contextual Elements

With respect to the contextual elements, the campaign launched by Syrian forces to retake Eastern Aleppo was an organised state policy. A legitimate question however, can be raised as to whether the civilian population was the primary object of the attack, (Kunarac Appeals Judgment para 91) or merely an “incidental victim of the attack’’, (Bemba Confirmation of Charges para 76). Given the means and methods used in Aleppo, (Kunarac Appeals Chamber Judgment para 91)  which are alleged to include “killing people, including women and children, on the spot in their homes and on the street,” there is at least a reasonable basis to believe that the civilian population were the object of the attack. Read the rest of this entry…

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The Evacuation of Eastern Aleppo: Humanitarian Obligation or War Crime?

Published on March 14, 2017        Author: 

On March 1, the UN Independent International Commission of Inquiry on the Syrian Arab Republic (“the Commission”) released a report on the horrific events that unfolded in Aleppo last year until it was captured by the Syrian governmental forces. The Aleppo report covers acts which may amount to violations of international human rights law or international humanitarian law (IHL), committed by all warring parties between 21 July and 22 December 2016. The Commission, whose reports will be instrumental for ongoing and future efforts to hold perpetrators accountable, should be commended for collecting and analyzing such an impressive amount of information in so little time.

The Aleppo report contains an appalling catalogue of allegations of egregious violations, including attacks against civilian infrastructures, hospitals, a UN/SARC humanitarian convoy and the use of chemical weapons. One allegation in particular caught the attention of the media: the Commission argues that the evacuation of eastern Aleppo amounts to the war crime of forced displacement. The Commission’s claim may at first seem astonishing not only because it stands in stark contrast with the then prevailing narrative of a humanitarian evacuation designed to alleviate human suffering, but also because the evacuation was based on an agreement between the warring parties – which means that opposing parties would have jointly committed a war crime. This post examines, on the basis of publicly available information, the legal foundation of this serious allegation.

The evacuation agreement

The evacuation of the rebel-held parts of the eastern districts of Aleppo was agreed between the warring parties as part of a cease-fire deal brokered by Russia and Turkey on 15 December 2016. The fall of this key rebel stronghold marked a major victory for the government forces, but it also offered rebels a safe passage into other rebel-held areas elsewhere in Syria. By 22 December, more than 35,000 people had been evacuated from the besieged areas of Aleppo to Idlib province (for the most part) or to western Aleppo. Read the rest of this entry…

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The Legal Protection of Mass Graves

Published on November 18, 2016        Author: 

Mass graves have been found all around the world, in Uganda, Burundi, The Philippines, Nepal and India. Yet, there is no definition of the term ‘mass grave’ in international law. Our common understanding is derived from pictures of history and news reports according to which ‘mass grave’ describes a site containing a multitude of human remains; a site of harrowing human loss, suffering and unimaginable acts of cruelty.

An Associated Press study published on 30 August 2016 revealed that 72 mass graves have been located in Iraq and Syria as a result of the occupation of the Islamic State. The estimated number of bodies inside them, based on both excavation findings as well as memories of witnesses and survivors, ranges from 5200 to a staggering 15000. The majority of these mass graves were located in Iraq, most in territory too dangerous to excavate. In Syria, once certain areas are secure enough to enter, more previously unreported sites may be identified.

A week after the Associated Press publication, the Group of the Progressive Alliance of Socialists & Democrats began to advocate for European support to preserve mass graves in Iraq and Syria. Despite this, the response of the international community has been as scarce as academic reflections on the topic.

The protection of mass grave sites and their content is paramount since they provide invaluable information for both the prosecution of perpetrators of international crimes, and the realisation of the right to truth, effective remedies and reparation for families of the deceased. In the following, we draw attention to the lack of legal protection, and the dire need for legal regulation and its effective implementation with respect to the treatment and maintenance of mass grave sites. Read the rest of this entry…

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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. Read the rest of this entry…

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Justice for Syria? Opportunities and Limitations of Universal Jurisdiction Trials in Germany

Published on August 12, 2016        Author: 

During the ongoing conflict in Syria, horrific international crimes are being committed on a daily basis. With impunity for these crimes prevailing on an international level, the attention of Syrian and international actors is turning towards trials under the principle of universal jurisdiction in national courts. This blog post provides a systematic overview of current trials and investigations in Germany relating to Syria and discusses the possibilities and limitations of such trials.

Impunity Prevailing on International Level

Many of the grave human rights violations in Syria are well documented by international bodies, international NGOs such as Amnesty International and Human Rights Watch (which rely on evidence from Syrian activists who are documenting these kind of crimes under great personal risk), and national organizations such as the Syrian Network for Human Rights, the Syrian Observatory for Human Rights and the Violations Documentations Centre.

However, geopolitical concerns impede effective and timely prosecution of human rights violations and international crimes: The hands of the International Criminal Court (ICC) appear to be tied and a double Security Council Veto by the permanent members, Russia and China, blocked a resolution to refer the situation to the Court. Despite the draft of a Statute as early as 2013, the call for the establishment of a hybrid tribunal by the UN Commission of Inquiry and academic support for this approach as the next best alternative (Van Schaack, Just Security; Sayapin, EJIL Talk), no tangible mechanism has resulted thus far. It follows that the only remaining and realistic avenue to seek justice for international crimes perpetrated in Syria is for other countries to prosecute these crimes by way of universal jurisdiction. Read the rest of this entry…

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Belgium’s Article 51 Letter to the Security Council [UPDATED]

Published on June 17, 2016        Author: 

On 7 June, the government of Belgium sent an Article 51 letter to the President of the Security Council, justifying its military action on the territory of Syria against ISIS by way of collective self-defense. The ODS link to the letter is here (S/2016/523), and here is the key paragraph articulating Belgium’s legal position:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not, at this time, exercise effective control. In the light of this exceptional situation, States that have been subjected to armed attack by ISIL originating in that part of the Syrian territory are therefore justified under Article 51 of the Charter to take necessary measures of self-defence. Exercising the right of collective self-defence, Belgium will support the military measures of those States that have been subjected to attacks by ISIL. Those measures are directed against the so-called “Islamic State in Iraq and the Levant” and not against the Syrian Arab Republic.

Interestingly, this paragraph is taken almost word-for-word from the letter Germany had sent to the Council on 10 December 2015, S/2015/946:

ISIL has occupied a certain part of Syrian territory over which the Government of the Syrian Arab Republic does not at this time exercise effective control. States that have been subjected to armed attack by ISIL originating in this part of Syrian territory, are therefore justified under Article 51 of the Charter of the United Nations to take necessary measures of self-defence, even without the consent of the Government of the Syrian Arab Republic. Exercising the right of collective self-defence, Germany will now support the military measures of those States that have been subjected to attacks by ISIL.

Note, however, some of the differences: Belgium calls this an exceptional situation, somewhat diplomatically removes the reference to the lack of any need for Syria’s consent, even though that’s implicit in its invocation of Article 51, and adds a sentence saying that measures taken in self-defence are directed at ISIS rather than against Syria (even if Belgian airplanes are flying in Syrian airspace and discharging weaponry on Syrian territory without its consent). Both Germany and Belgium endorse a position whereby action against a non-state actor operating from the territory of another state is permitted without that state’s consent if the state lost effective control over the relevant area – this is very close to, but not necessarily exactly the same thing, as the ‘unwilling and unable’ test.

UPDATE: Many thanks to everyone contributing in the comments. I’d say that perhaps the most valuable lesson to be learned from this discussion is how all of these states are strategically using ambiguity in their various letters to the Council. They know perfectly well that the formulations that they have chosen are open to several possible interpretations, and they were deliberately chosen precisely with that in mind – not simply as a matter of diplomacy, but in order to create legal cover for what they want to do today while keeping their options open for the future. Nothing less could be expected, of course, when we bear in mind that the Council’s ISIS resolution 2249 is itself a masterful example of such a use of ambiguity. But ambiguity of this kind is also obviously detrimental when it comes to solidifying a clear position with regard to self-defence against non-state actors on the basis of state (and UNSC) practice.

In that regard, a kind reader also let me know that Norway has also sent a letter to the Council, dated 3 June, S/2016/513. The three key paragraphs are quoted below the fold – note how simply wonderful Norway is in saying nothing, beyond simply stating that it is exercising the right to collective self-defence without directing its actions against Syria.

Read the rest of this entry…

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A “Hybrid” Tribunal for Daesh?

Published on May 4, 2016        Author: 

On 21 April 2016, Professor Robert Cryer published a concise analysis of the possible consequences of a resolution adopted by the UK House of Commons a day earlier, including of a possible referral of the situation involving crimes – war crimes, crimes against humanity, and, in particular, genocide – committed by members of Daesh to the International Criminal Court (ICC). Although Professor Cryer noted, quite appropriately, that “political realities in the S[ecurity] C[ouncil] mean that there may be a veto on a resolution sending the matter to the ICC”, there are even more limitations to the likelihood of this proposal. This post briefly discusses these other limitations and suggests an alternative way to proceed.

Legal and Practical Limitations of the ICC Jurisdiction

It is unlikely that the ICC would get to deal with Daesh’s crimes in the foreseeable future. The Court does not presently have territorial jurisdiction with respect to the situation in Syria and Iraq, since neither of these States is a Party to the Rome Statute. Theoretically, the Court might exercise personal jurisdiction with respect to crimes committed by foreign members of Daesh who are nationals of States Parties to the Statute – but this is also unlikely, by virtue of the ICC principle of complementarity: if such individuals are found in the territory of a State Party to the Rome Statute, they are likely to be handed over to the States of which they are nationals, or to be tried in the State where they are apprehended (aut dedere aut judicare).

In turn, the likelihood of the situation in Syria being referred to the ICC by the UN Security Council is close to zero, because such a referral would imply the Court’s jurisdiction not only with respect to crimes under international law committed by members of Daesh (for the concept of crimes under international law, see: G. Werle and F. Jessberger, Principles of International Criminal Law, p. 32) but also with respect to those committed by Syrian armed forces, their internal opponents, and – last but not least – by members of foreign armed forces currently present in the country. Yet, there seem to be further good reasons not to refer the situation involving crimes committed by members of Daesh to the ICC at all, but to follow an alternative route. Read the rest of this entry…

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The United States is at War with Syria (according to the ICRC’s New Geneva Convention Commentary)

Published on April 8, 2016        Author: 

The United States is currently engaged in an armed conflict with an organized armed group operating from the territory of two foreign states. Is this armed conflict an international armed conflict (IAC), a non-international armed conflict (NIAC), both, or neither? The question matters because the answer determines which international legal rules apply to the conflict and regulate its conduct.

In his recent speech to the American Society of International Law, U.S. State Department Legal Adviser Brian Egan noted that “some of our foreign partners have asked us how we classify the conflict with ISIL and thus what set of rules applies. Because we are engaged in an armed conflict against a non-State actor, our war against ISIL is a non-international armed conflict, or NIAC.”

So far, so good. Few would deny that the United States is in a NIAC with ISIL. However, Egan continues: “Therefore, the applicable international legal regime governing our military operations is the law of armed conflict covering NIACs.”

Not so fast. In its recently released Commentary on the 1949 Geneva Conventions, the International Committee of the Red Cross writes that “an international armed conflict arises between the territorial State and the intervening State when force is used on the former’s territory without its consent.” If the territorial state consents to the use of force on its territory—including force directed at an organized armed group—then there is no international armed conflict between the two states. Since Iraq has consented to the United States using force against ISIL on its territory, there is no international armed conflict between the United States and Iraq. It follows that only the law of armed conflict covering NIACs governs U.S. military operations in Iraq.

Again, so far, so good. But what about U.S. military operations in Syria? According to the ICRC, if the territorial state does not consent to the use of force on its territory—even force directed exclusively at an organized armed group—then an international armed conflict arises between the two states. Importantly, “[t]his does not exclude the existence of a parallel non-international armed conflict between the intervening State and the armed group.”

It seems to follow that, according to the ICRC’s approach, the United States is both in a NIAC with ISIL and in an IAC with Syria. Accordingly, both the law of armed conflict covering NIACs and the law of armed conflict covering IACs govern U.S. military operations in Syria. Read the rest of this entry…

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Austria and the Fight Against the “Islamic State”: Whither Neutrality?

Published on February 3, 2016        Author: 

The most recent escalation of the conflict in Syria and the Paris attacks have once again led to intense debates over the still unresolved question of self-defence against non-state actors, the role of UN Security Council resolution 2249 in this regard, and the EU’s mutual defence clause enshrined in Article 42(7) of the Treaty on European Union. While these issues are of particular importance for those states that recently joined the military efforts against the “Islamic State’s” safe haven in Syria , i.e. the UK or Germany, they also affect one of the most delicate topics in Austria: its permanent neutrality.

In September 2015 foreign minister Sebastian Kurz declared that Austria had joined the alliance against the “Islamic State”, albeit without any military consequences. After France invoked the EU’s mutual defence clause, however, Austrian Defence minister Gerald Klug – emphasizing that he was voicing his personal opinion – openly stated that “there cannot be neutrality against terrorism.” From this point of view, measures typically deemed as being incompatible with neutrality, particularly flight permits for military aircraft on their way to Syria, do not pose a problem. Upon closer inspection, however, things are less clear.

Austria’s status as a permanently neutral state is a product of the negotiations with its four occupying powers – the US, the UK, France, and the Soviet Union – following the Second World War. According to Article I of the “Federal Constitutional Law on the Neutrality of Austria”, Austria “is resolved to maintain and defend its [permanent] neutrality with all the means at her disposal” and “will never in the future accede to any military alliances nor permit the establishment of military bases of foreign States on her territory.” Back in 1955, Austria notified all 63 states it entertained diplomatic relations with at that time of this law and asked for recognition of its status as a permanently neutral state. Hence, it is not only bound internally but also under international law to this very day (although it could, in the opinion of the Austrian Ministry for Foreign Affairs, unilaterally revoke this status regardless of whether other states take note or agree). Read the rest of this entry…

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Self-defense Operations Against Armed Groups and the Jus in Bello

Published on December 16, 2015        Author: 

The Paris shootings and France’s reaction have once again triggered debate on states’ right to self-defense against attacks by non-state actors (see here, here, or here). Discussions normally focus on jus ad bellum issues, such as the ‘unwilling or unable’ test or when a threat is imminent. A question that receives strikingly little attention is whether the invocation of the right to self-defense against a non-state armed group under jus ad bellum would provide a sufficient legal basis for attacking this group by military means. As Marko Milanovic pointed out on this blog, the lawfulness of strikes against a non-state entity does not only depend on jus ad bellum but also on a second layer of legal examination: does the attack form part of an armed conflict and complies with international humanitarian law, or is the attack in questioned governed by international human rights law and possibly infringes on the targeted person’s right to life? This post examines how the use of military force in self-defense against non-state armed groups may be justified under jus in bello. Read the rest of this entry…

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