Evacuation of Civilian Populations and Criminal Complicity: A Critical Appraisal of the February 2017 Report of the Syria Commission of Inquiry

In its February 2017 Report (A/HRC/34/64), the Independent International Commission of Inquiry on Syria made the bold statement that the evacuation of the civilian population from Eastern Aleppo, pursuant to an agreement between the Syrian government and the armed groups “amounts to the war crime of forced displacement” since it was made “for strategic reasons” and “not for the security of civilians or imperative military necessity.” (para. 93). A – perhaps unintended – consequence of this proposition would be that staff of NGOs or other non-state actors who assisted in this evacuation may be criminally liable as accomplices in this war crime.

I will argue here that this proposition is incorrect for basically two reasons. First, the Report does not make a persuasive argument that a war crime has been committed and thus there is no criminal conduct to which other individuals could have been contributed. Secondly, even if, arguendo, one assumes that the evacuation amounted to a war crime, to provide assistance in the evacuation of civilians does not constitute criminally relevant complicity.

With regard to the first argument – the criminality of the evacuation – the relevant codification can be found in Art. 8(2)(e)(viii) ICC Statute according to which the “[O]rdering the displacement of the civilian population for reasons related to the conflict” amounts to a serious violation of the laws and customs applicable in a non-international armed conflict, “unless the security of the civilians involved or imperative military reasons demand”. I think in the case at hand, it is plausible to argue that, contrary to the Commission’s view, the evacuation was demanded by the security of the civilians and military necessity. As to the former, it is quite evident that the evacuation of civilians from a conflict zone to a safe(r) area increases their security even if the warring parties pursue other, e.g. “strategic”, interests. As a matter of fact, strategic interests may constitute themselves a sufficient reason for an evacuation if their aim is, for example, to remove civilians from the conflict zone to avoid collateral damage. The evacuation would then at least be justified by military necessity. Admittedly, as previously argued by Elvina Pothelet in this post, the idea of the evacuation was that Syrian troops would regain control of the city and combat operations would therefore stop; under these circumstances the evacuation would at best be lawful with regard to the wounded and sick (cf. Pothelet, ibid.). As to the forceful character of the evacuation two things must be noted. First, the evacuation was agreed between the warring parties. While this is not necessarily binding on the civilians concerned (Naletilic Trial Judgement, para. 523), the displacement could only have been “forced” with regard to those civilians who explicitly opposed it (cf. Pothelet, ibid). Secondly, the displacement must have been “ordered” but it is difficult to find any indication of such an order in the Report or elsewhere (see also Pothelet, ibid.). To argue the order element away, as done by Matt Brown here, is certainly to the detriment of the accused and thus hardly compatible with the legality principle (especially the lex stricta component) as enshrined in Art. 22, 24 ICC Statute. Clearly, the civilians concerned always have a right to return (cf. Rule 132 of the ICRC Customary Law Study).

At any rate – and that is my second, complicity related argument – to assist such an evacuation does not amount to criminally relevant complicity in the sense of Art. 25(3)(c) or (d) of the ICC Statute (requiring an act of assistance or “any” contribution). This follows from normative, value-based considerations which limit accomplice liability to those acts of assistance/contributions which either create a risk/harm, or increase an existing risk/harm and this risk/harm is disapproved of by the legal order (prohibited risk/harm) (cf. Ambos, Treatise on International Criminal Law, Vol. I, OUP 2013, p. 165). In other words, the otherwise limitless accomplice liability must be limited by normative considerations which focus on the quality of the act of assistance/contribution with a view to exclude the apparently innocent (neutral, daily etc.) contributions from the scope of criminality. To be sure, this is primarily an objective assessment in order to limit criminally relevant complicity to conduct which constitutes a significant deviation from standard social or commercial behaviour which modern capitalist societies approve of and even demand. Take the following examples from ordinary criminality: The baker sells bread to the wife who fills it with poison to kill her husband; the shopkeeper sells a screwdriver to a man who uses it to stab another man at the next corner; the taxi driver brings the bank robber to the bank she wants to rob without any knowledge thereof just rendering his normal service. In all these cases the act of assistance (selling a certain good or giving a service) is causal for the main act (killing, bank robbery), at least in the sense of a naturalistic, but for, causality, with hypothetical courses of causation excluded. Thus, causality as the (only) requirement to more precisely define a criminally relevant contribution does not – contrary to, most recently, Bemba et al., Trial Judgment [Art. 70 case], ICC-01/05-01/13-1989-Red, para. 90, 19 October 2016 – provide stringent, normatively convincing, criteria to delimit criminally relevant from irrelevant (innocent, neutral) complicity.

Intuitively, we hesitate to consider the baker, shopkeeper or taxi driver criminally liable as accomplices as long as they only perform their normal, daily – per se neutral – commercial activity. Only if, from an objective perspective, the respective conduct creates or increases a prohibited risk, e.g. the shopkeeper selling a weapon to a person without licence (in jurisdictions, like the European ones, where such licence is necessary), it amounts to a criminally relevant complicity. Otherwise, in a liberal society, it is not the responsibility of citizens performing normal, socially desirable services to play police and find out the perhaps malicious intentions of their clients. This objective assessment does not change without more with the existence of a mens rea on the part of the person making the contribution. Thus, mere awareness that the client misuses the service to commit a crime, e.g. awareness that the wife buys the bread to poison the husband with it, does not convert the per se neutral contribution into a criminal one. Subjectively more is required, namely that the accessory shares the criminal intent or purpose of the perpetrator, that is, s/he must pursue the same criminal purpose as the perpetrator. In national doctrine it has been argued insofar that the accessory’s contribution must possess a “deliktischer Sinnbezug” (C. Roxin, Strafrecht Allgemeiner Teil, Vol. II, München: C.H. Beck 2003, pp. 207 ff.), that is s/he must give his/her contribution a criminal meaning by solidarizing him-/herself with the perpetrator’s criminal purpose.

The reasons why we in these and other cases of per se neutral contributions tend to reject accomplice liability are thus of a normative nature. Those reasons are equally valid in the context of macro-criminality dealt with by international criminal law since Nuremberg, and have recently indeed been discussed in this context. ICC President and Judge Fernández de Gurmendi employed the term “neutral” contributions with regard to Art. 25(3)(d) ICC Statute in the Mbarushimana Appeals confirmation decision and referred, somewhat mysteriously, to “the normative and causal links between the contribution and the crime” (ICC-01/04-01/10-514, 30 May 2012, Separate Opinion of Judge Fernández de Gurmendi, para. 5 ff., at para. 12). Judge van den Wyngaert invoked the ICTY Perišić “specific direction” standard (IT-04-81-A, para. 44) as a follow-up to Judge Fernández de Gurmendi’s approach and required that the assistance within the meaning of Art. 25(3)(d) ICC Statute must be “specifically directed to the criminal or non-criminal part of a group’s activities” (ICC-01/04-01/07-3436-AnxI, 7 March 2014, Minority Opinion Judge van den Wyngaert, para. 287; see for a discussion with further references Ambos, in Stahn, (ed.), The Law and Practice of the ICC, OUP 2015, pp. 598, 600 ff.).

The same inherently normative reasoning applies to possible accomplice liability of members of humanitarian organisations which assisted in the evacuation of the civilian population in the case at hand. Here, too, normative considerations, albeit of a different nature, speak against a criminal accomplice liability of the staff of these organisations. The main argument against criminalisation is a sort of reduction of harm argument. The conduct of these organisations does not in any way increase the risk/harm of the civilian population but it reduces/diminishes it. They take care of the civilian population and make sure that the evacuation takes place in an orderly and, above all, humanitarian manner (in the same vein Pothelet, op.cit.). Thus, in principle, such a conduct should not be criminalised but praised. Of course, the legal qualification of the conduct of such organisations is always case- and context-dependent and there may be situations where they really lend their hand to criminal enterprises which may then give rise to accomplice liability.

Be that as it may, the Report’s bold punitive approach entails unintended consequences by the certainly well-intended members of the Commission. The purpose of this post is simply to create awareness of the problem among the relevant actors. A call for a more cautious approach to legal qualifications is certainly justified. Probably, it would be more prudent if such commission limit themselves to factual findings and leave the legal qualifications to the competent legal authorities. In the long run more concrete guidelines on how to handle these kind of cases implicating humanitarian action – certainly not limited to the Syrian conflict – are to be developed. Academics could assist in that regard. As a first proposition one could submit that there is a presumption of lawfulness in favour of the activity of these organisations as long as they act in accordance with their humanitarian purpose.

The views expressed are those of the author and do not necessarily reflect the views of the Kosovo Specialist Chambers.