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

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. Additionally, even if legitimate opposition targets were based in Aleppo, ‘a population remains civilian in nature even if there are individuals within it who are not civilians, as long as the population is ‘predominantly civilian’ (Bemba Trial Judgment para 153). The overall attack is widespread, having targeted multiple victims with considerable seriousness across a large geographical area. The attack’s systematic nature is also satisfied by reference to the substantial resources employed and its organised nature. This organisation and use of state resources in a specific area similarly evidences a state policy beyond “spontaneous or isolated acts of violence” (Katanga Confirmation of Charges para 396).

Article 7(1)(d) – Deportation or Forcible Transfer of Population

The Krnojelac Trial Judgment (para 474) highlighted the important distinction between deportation and forcible transfer, holding that “[d]eportation requires the displacement of persons across a national border, to be distinguished from forcible transfer which may take place within national boundaries.” (See here also). In the present case, the majority of those evacuated appear to have been moved to places within Syria, with some indeed already returning.

The Perpetrator Deported or Forcibly Transferred by Expulsion or other Coercive Acts

The ICC Elements of Crime note that the term ‘forcibly’ is “not restricted to physical force, but may include threat of force or coercion, such as that caused by fear of violence, duress, detention, psychological oppression or abuse of power against such person or persons or another person, or by taking advantage of a coercive environment.” The Simić Trial Chamber (paras 125-126) concurred, noting:

The essential element is that the displacement be involuntary in nature, that ‘the relevant persons had no real choice’. In other words, a civilian is involuntarily displaced if he is ‘not faced with a genuine choice as to whether to leave or to remain in the area’.

A similar approach was taken in Prlić where the Trial Chamber (para 50) held that: “It is the absence of genuine choice that renders removal unlawful.”  Although in the case of the Aleppo evacuation, an agreement was signed to facilitate the evacuation of the civilians, that agreement cannot amount to relevant consent since as stated by the Naletilic Trial Judgment (para 523), “Military commanders or political leaders cannot consent on behalf of the individual.” The link between the conduct and the resulting effect of forcing the victim to leave the area, (Ruto et al Confirmation of Charges para 245) is likewise satisfied by the bombardment of Aleppo leading to chronic food shortages, no water supply, and numerous civilian casualties.

Without Grounds Permitted under International Law

This provision relates to the power of States to enforce ordinary restrictions on the freedom of those who are lawfully present to move within their territory. (See Otto Triffterer’s Commentary Article 7(2)(d)). The Kunarac Appeals Judgment (para 91) however noted “to the extent that the alleged crimes against humanity were committed in the course of an armed conflict, the laws of war provide a benchmark against which the Chamber may assess the legality of the acts committed.” Nonetheless, even if one accepts that there are legitimate opposition forces within Aleppo, the response of bombarding an area that ultimately forced the displacement of thousands of civilians, cannot be justified even if an appeal to IHL is made.

Lawfully Present

The Elements of Crimes repeats the language found in Article 7(2)(d), therefore leaving the interpretation of the term lawfully present to the adjudication of the Court. For a potential guide, the Popović Trial Judgment (para 900) noted that: “What is important is that the protection is provided to those who have, for whatever reason, come to ‘live’ in the community—whether long term or temporarily … [it is not to] impose a requirement for ‘residency’.” The destruction to people’s homes and schools highlights how this requirement is therefore easily satisfied.

This section, in similar vein to Elvina’s post has analyzed the elements behind a potential prosecution for the forced displacement of civilians from Eastern Aleppo. In summary, the contextual elements being satisfied, a strong case can be made that members of the civilian population, lawfully present on the territory, were forcibly transferred, by coercive acts, without grounds permitted under international law.

Forced Displacement as a War Crime– Article 8(2)(e)(viii)

I shall now turn to addressing an issue raised within Elvina’s post, that there requires an ‘order to displace’ in order to satisfy the provision of Article 8(2)(e)(viii).

Elvina’s argument states that ‘in order to constitute a violation and, a fortiori, a war crime in a non-international armed conflict (NIAC), displacement must not just be forced, it must be “ordered”.  Although reference is made to convincing arguments in favour of a ‘broader interpretation on the basis of the object and purpose of IHL’ I wish to expand upon and develop some of these arguments, with three points that I argue demonstrate why a strict interpretation of the provision is unnecessary.

First, despite the strict wording of the Rome Statute, the Pre Trial Chamber in Ntanganda (para 64) has in fact concluded that ‘the conduct by which the perpetrator(s) force(s) civilians to leave a certain area is not limited to an order, as referred to in element 1 of the relevant Elements of Crimes […] should that be the case, the actual circumstances of civilian displacement in the course of an armed conflict would be unduly restricted’. It remains to be seen how the Ntaganda Trial Chamber will interpret this provision, or even develop its reasoning.

A second argument can be advanced, that given the harmonsiation of the law of armed conflict between international armed conflicts (IACs) and NIACs, it remains startling that the similar crime under Article 8(2)(vii) makes no reference to the requirement of ordering, yet Article 8(2)(e)(viii) does. Far from ignoring the intent of the drafters however, it is permissible to assess the broader context of the Statute, (VCLT Article 31(2)). In drawing on Article 8(2)(vii), an argument can be advanced that the term ordering should not be viewed as a rigid element of the crime, given that the clear intent of the drafters, with respect to Article 8(2)(vii) was not to include an ordering requirement. This form of ‘effective interpretation’ will naturally face critics, who outline a stricter interpretative method, but it would likewise not be the first time the ICC has ruled that a narrow interpretation of a principle would be ‘absurd’ and be against the backdrop of ‘basic humanitarian considerations and common sense’ (Lubanga Confirmation of Charges para 284)

Thirdly, one can invoke Article 31(3)(b) VCLT which permits the interpretation of treaties to be undertaken “together with the context […] [and] any subsequent practice in the application of the treaty which establishes the agreement of the parties regarding its interpretation”. A study of military manuals reveals that even where States have adopted Article 8(2)(e)(viii) directly into their criminal legislation, (see – Canada, Crimes Against Humanity and War Crimes Act, 2000, page 26) their military manuals subsequently prohibit forced displacement in non-international armed conflicts without requiring that it be ordered (Canada’s Law of Armed Conflict Manual 2001  § 1724). Other military manuals from Burundi and South Africa to Spain and the Netherlands place their emphasis solely on the forcible nature, over a direct order. National legislation from Colombia among many others also punish “anyone who, during an armed conflict, without military justification, deports, expels or carries out a forced transfer or displacement of the civilian population from its own territory.” Given that states have interpreted the prohibition as not requiring a specific order, a narrower interpretation would be contrary to what I argue reflects the true customary understanding of the term. An agreement signed between the Government of The Philippines and the National Democratic Front of the Philippines, also emphasizes that “practices that cause or allow the forcible evacuations or forcible reconcentration of civilians” shall be prohibited, irrespective of the lack of an order.

Accordingly, despite what may seem the clear cut wording of the Rome Statute, the Court itself, along with state interpretation, evidences a consistent position that the war crime of forced displacement can be committed without a direct order to do so.

Conclusion

This post has outlined how a prosecution under Article 7(1)(d) for forced displacement might succeed, and in response to Elvina Pothelet’s contribution, where I respectfully advance a differing interpretation of the ordering requirement found in Article 8(2)(e)(viii). The law on both points however, remains contentious and a fascinating issue for debate, one that in time might be answered by the judicial process itself.

For further reading outside of the Aleppo conflict, readers may also find this Amnesty Report on Forced Displacement in Northern Syria interesting.