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

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.

The evacuation was mainly portrayed as a humanitarian undertaking, designed to end, at long last, months of deprivation and suffering for the desperate residents of the besieged city. In fact, if the siege had the effect of starving the civilian population, the government forces were even under a legal duty to allow access to humanitarian relief – either by allowing civilians to leave the area or by allowing the free passage of foodstuffs and other essential supplies into the city.

Yet, the Commission describes the evacuation deal in strikingly different terms:

“None had the option to remain in their home. As warring parties agreed to the evacuation of eastern Aleppo for strategic reasons – and not for the security of civilians or imperative military necessity… – the Aleppo evacuation agreement amounts to the war crime of forced displacement” (para. 93)

Forced displacement in non-international armed conflicts

The evacuation of eastern Aleppo took place in the framework of a non-international armed conflict (NIAC) – or rather several NIACs – between the Syrian forces and different armed groups (the existence of a parallel international armed conflict (IAC) involving the US-led coalition in Syria is immaterial because these forces were not involved in the Aleppo events, so we can accept that NIAC law prevails over IAC law). In NIAC, ordering the displacement of civilians is prohibited under Article 17(1) APII and a corresponding customary rule. Only the latter applies to the Aleppo events because Syria is not a party to APII. This rule (Rule 129 B of the ICRC Study on Customary IHL) provides that:

“Parties to a non-international armed conflict may not order the displacement of the civilian population, in whole or in part, for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand”.

Under Article 8(2)(e)(viii) of the ICC Statute, a violation of this rule may amount to the war crime of forced displacement, along the same wording.

On this basis, the displacement of civilians is prohibited in NIAC if 1) they are forcibly displaced, as opposed to voluntarily evacuated and 2) their displacement is not demanded by their own security or imperative military reasons. As a third consideration, one could add that 3) the displacement must not be required by another IHL rule, such as the obligation to evacuate wounded and sick.

An order to displace?

Whether displacement of civilians is prohibited under IHL revolves primarily around the delicate issue of its forcible character. Although not explicitly mentioned in Art. 17 APII and its corresponding customary rule, this condition derives from the reference to an “order to displace”. Three elements must be taken into consideration.

First, determining whether displacement is forced can only be made on an individual basis: “what matters is the personal consent or wish of an individual, as opposed to collective consent as a group, or a consent expressed by official authorities” (Simic Trial Judgement, para. 128). In this regard, it is important to clarify that the adoption of an “agreement” between the warring parties has no impact on the voluntary nature of the displacement: the parties cannot consent on behalf of the individual (Naletilic Trial Judgement, para. 523) (and recent surveys highlight the feeling of many Syrians that the terms of local truces, such as the one concluded in Aleppo, are imposed on them). This being said, in Aleppo, the evacuation seems, by all accounts, to have triggered “mixed feelings among residents”. For instance it is probable that relatives of rebels, who were given the possibility to move to other rebel-held areas, made the conscious choice to be evacuated with them. The Commission’s statement that “[n]one had the option to remain” thus needs to be considered very carefully. If a war crime of forced displacement occurred in Aleppo, it was committed only in relation to those individuals who were ordered to leave.

The second difficulty lies in the meaning of “forcible” in the inherently coercive context of war. As is well established in case law and in the ICC Elements of Crimes, the term “’forcibly’… may include threat of force or coercion, such as that caused by fear of violence… or by taking advantage of a coercive environment”. Thus, whether civilians left Aleppo voluntarily or forcibly must be evaluated against the background of a five-month siege, which pushed people towards starvation, depriving them of the most basic resources, including access to medical care in a city hit by daily bombardments. When faced with a choice (real or perceived) between leaving your house and all your belongings, or having virtually no chance of survival, can one really speak of a voluntary decision to leave? From that perspective, the living conditions imposed upon eastern Aleppo by the parties – and, in the first place, by the regime forces enforcing the siege as part of a “starve or surrender” tactic – can reasonably be considered to have led to forcible displacement.

However, and this is the third difficulty, in order to constitute a violation and, a fortiori, a war crime in an NIAC, displacement must not just be forced, it must be “ordered”. The requirement of an order is specific to NIAC law (compare art. 17 APII with art. 49(2) GCIV, its rough equivalent in IACs) and is generally understood as entailing something more than the IAC prohibition of forcible displacement (see OUP Commentary, p. 1206). This being said, there are convincing arguments in favor of a broader interpretation on the basis of the object and purpose of IHL, according to which Art. 17 APII and Rule 129B prohibit forced displacement regardless of whether it was ordered or not. However, similar arguments are more delicate for the war crime of forced displacement in NIACs. The ICC Elements of crimes indeed make clear that Art. 8(2)(e)(viii) requires that “[t]he perpetrator ordered a displacement of a civilian population” and “was in a position to effect such displacement by giving such order” (emphasis added). In this respect, it will be crucial to clarify the exact content of the Aleppo evacuation agreement and how an order may have been communicated to civilians (according to the Commission: “Under the terms of the agreement… civilians had no option to remain”, para. 104).

In any case, the role of humanitarian organisations has no bearing on the lawful or unlawful nature of the displacement (see e.g. Simic Trial Judgement, para 127). Humanitarian evacuation operations are clearly distinct, materially and temporarily, from the unlawful ordering of displacement by the parties. Humanitarian organisations help meet the most urgent humanitarian needs of civilians during their displacement; their neutral and impartial presence is also instrumental in reducing the risk that secondary violations (such as acts of violence) take place during the evacuation.

If the facts confirm the existence of an order to displace Aleppo’s civilians, could it fall under one of the two exceptions to the prohibition?

Displaced for imperative military reasons or for their own security?

The first exception to the prohibition is if “imperative military reasons” so demand. This would include exceptional cases where the presence of civilians pose an impediment to military operations such that there is no other alternative than removing them temporarily. In Aleppo, no publicly available information suggests the existence of such overriding military considerations on the part of the regime or rebel forces. In fact, as the logical result of the deal was that Assad’s forces would regain full control of Aleppo – which they reportedly did immediately after the evacuation – it is unlikely that any of the parties were anticipating major combat operations (and it would be difficult to argue that the evacuation was absolutely necessary for them to enter these parts of the city which were by then virtually emptied of most rebels).

Could it be argued that the evacuation of civilians was required for their own security? This can be the case for instance if “an area is in danger as a result of military operations or is liable to be subjected to intense bombing”. In such circumstances, removing civilians from military objectives located in the city would even be required by Art. 58(a) API. Again, it is doubtful that the parties had reasons to believe that fighting would continue after the deal was concluded. Another argument on the part of rebel groups could be that they ordered the displacement of civilians to protect them from violent acts of reprisals from regime forces once the city would have fallen in their hands. However, this argument cannot be validly invoked by regime forces: as they were expecting to regain control over the eastern part of the city, they cannot justify forcible displacement on the basis of potential criminal activity by their own troops (for a similar reasoning see Stakic, Appeals Judgement, para 287). (Note that temporary displacement of civilians may be lawfully ordered to protect them from mines planted by the enemy, as found by the Commission in relation to the displacement of civilians from the Tishreen Dam and Minbij areas ordered by the SDF, see Conference room paper released on 13 March, at para. 91).

The obligation to evacuate wounded and sick v. the prohibition of forced displacement

Aleppo’s ceasefire deal included the evacuation of the wounded and sick. Their case raises an even more delicate legal question as parties have an obligation to evacuate them under IHL. Should some of the wounded or sick civilians be considered to have been forcibly evacuated (in the broad understanding of the term) how should the obligation to evacuate wounded and sick be reconciled with the prohibition to forcibly displace civilians? The obligation to evacuate wounded and sick is absolute so there is an argument to be made that, although due consideration should always be given to the patient’s will, the duty to evacuate wounded and sick – which forms the bedrock of IHL – would prevail over the prohibition to forcibly displace (including because making evacuations dependent on patients’ will could easily be abused by belligerents to escape their obligations). This would be the case only for genuine medical evacuations, i.e. undertaken exclusively in order to care for the patient, and on the condition that his/her repatriation is effectuated as soon as feasible.

Conclusion

The Commission’s allegation must be taken very seriously, not only for accountability purposes if it is proven, but also because there is a real risk that such a finding will dissuade warring parties from concluding humanitarian evacuation agreements in the future (as encouraged, and even sometimes required, by IHL). Proving that the evacuation of eastern Aleppo constituted a war crime, at least in relation to those civilians who forcibly left the city, would require a prosecutor to prove the existence of an order to displace. This will be no easy task, but if the facts confirm this, there seems to be no reason justifying an exception to the prohibition – except arguably for rebel groups on the ground that it was required for the security of civilians. Most importantly, whether they were lawfully displaced or not, civilians have a right to return as soon as the reasons for their displacement cease. It will be important to monitor whether the parties comply with the clear terms of this legal obligation – especially because it may be an indicator of the criminal nature of the displacement itself.

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14 Responses

  1. Matt Brown

    Hi Elvina,

    Thanks for an interesting post, I have two questions / comments:

    1. Would you consider a charge under Article 7(1)(d) any more likely to succeed than a war crime charge? – Minus the ‘ordered’ requirement and any armed conflict nexus requirements, for either Forcible Transfer or Deportation.

    2. With respect to the ordering requirement…

    Prosecutor v Ntaganda (Decision Pursuant to Article 61(7)(a) and (b) of the Rome Statute on the Charges of the Prosecutor Against Bosco Ntaganda) ICC-01/04-02/06 (9 June 2014) [64].

    http://www.corteconstitucional.gov.co/relatoria/1995/c-225-95.htm ‘La investigación ha concluido que en nuestro país existen entre 544.801 y 627.720 personas desplazadas por razones de violencia en los últimos diez años,

    Suggest that an order might not be strictly required. Contrary to the strict wording of the Statute, there does seem a (tentative) argument, that it is the forced nature of violence which dominates over a requirement for specific order.

    I’m currently writing essentially the same question for publication, but also with CAH approach, so interesting to see your take as well on an interesting topic.

    Best wishes,

    Matt

  2. Nick Notan

    Dear Ms. Pothelet,

    With regard to “(the existence of a parallel international armed conflict (IAC) involving the US-led coalition in Syria is immaterial because these forces were not involved in the Aleppo events, so we can accept that NIAC law prevails over IAC law)”:

    Why then Reuters has an article titled “Aleppo’s fall would be win for Russia, defeat for U.S. in Mideast” on their website?

    It starts like this “U.S.-backed moderate rebels’ loss of the eastern half of Syria’s largest city Aleppo to Russian-backed government forces would be a defeat for President Barack Obama’s efforts to promote democracy and defeat terrorism in the Middle East, U.S. officials conceded on Monday”.

    Those “moderate rebels” were a part of the US coalition, weren’t they?

  3. Elvina Pothelet

    Dear Mr. Notan,
    Thank you very much for your question which raises a tricky issue that I didn’t have the space to delve into!
    Correct, you can reasonably argue that there is an IAC in Syria (or several IACs if you look at bilateral belligerent relationships): potentially one involving the US-led coalition because they intervene without Syria’s consent and/or because they exercise overall control over those “moderate rebel groups” you mention (but it seems really doubtful the support of the coalition would meet the legal test of overall control as interpreted by the majority). Some may even argue that there is an IAC between the Russians and the coalition (but in my view it cannot be the case without hostile acts between the two). In any case, I would not have a problem considering that Syrian civilians are protected by the law of IAC (in addition to the law of NIAC).
    Now, this type of “mixed classifications” create complex considerations of applicable law: if you argue that IAC and NIAC occur in parallel in a given theater, then you have to determine which law applies to every single event. Thus, if armed group X captures a soldier from State A, this falls under NIAC law; if State A murders a prisoner from State B this falls under IAC law. When civilians are forcibly displaced, in my view, we have to look at the parties responsible for their forcible displacement (to whom does the prohibition to forcibly displace apply?). In Aleppo, the parties who allegedly forcibly displaced civilians are parties to NIACs (the regime forces and several rebel groups).
    However, if facts indicated that the US-led coalition is exercising overall control over one of the groups parties to the evacuation plan, I would have no problem assessing the evacuation in the framework of IAC law.
    I hope this answers your question!

  4. Elvina Pothelet

    Dear Matt,
    Thank you for your comments.
    1) I would say yes, because there is no “ordering” requirement (and provided you can prove a “widespread and systematic attack against the civ. population” – in Aleppo, you’d need to assess this for each party to the evacuation agreement);
    2) Yes, you are right to point out that the PTC in the Ntaganda confirmation of charges seems to accept that an order is not required, but as you say “contrary to the strict wording of the Statute”! Obviously, I understand the desirability of adopting the same test than for forced displacement in IAC (I cannot think of a logical reason why a requirement of order would be necessary in NIAC but not in IAC), however we cannot ignore the fact that States agreed to adopt the specific wording of “order” in APII in 1977 and that they again decided to keep this as a specific requirement in the ICC Statute AND in the ICC Elements of Crimes (this being said, only very few military manuals replicate this specific requirement: https://ihl-databases.icrc.org/customary-ihl/eng/docs/v2_rul_rule129).
    So let’s see whether the Ntaganda TC agrees with the PTC…
    Very much looking forward to reading your publication on this fascinating issue!
    Best,
    Elvina

  5. Nick Notan

    Dear Ms. Pothelet,

    Thank you very much for the clarification.

    I would disagree with you that it is really doubtful that the support of the support of the coalition would meet the legal test of overall control: I am neither positive, nor negative about this issue. I would like to stress that the US-led coalition includes Turkey, Saudi Arabia and Qatar, whose interference appears to be on great scale.

    Also, I have a lot of doubts regarding the Commission statement “None had the option to remain in their home”. I have seen in several movies that multiple people remained in the East Aleppo after rebels left.

    Thank you for the posting.

  6. Jason DeFries

    Nick,
    You have “seen in several movies that multiple people remained in the East Aleppo after rebels left”? Wasn’t the agreement that nobody stay? What movies?

  7. Nick Notan

    Jason,

    you can see two persons, a woman and an elderly man, even in an Euronews report on the east Aleppo:
    https://youtu.be/kLkv8lPXfLY?t=92

    In an ANNA-news report people are seen in multiple frames: https://www.youtube.com/watch?v=0vxmYR6QQkI

    In particular, there is at least one child at 8:00. When the discussed issue is demining, it can be only the formerly rebel-held part (i.e. Eastern Aleppo).

    See also the recent article:
    http://www.independent.co.uk/news/world/middle-east/aleppo-viral-photograph-old-man-story-behind-syria-civil-war-six-years-mohammed-moheidin-anis-abu-a7630691.html

    I have not studied the agreement and am not even sure how many agreements were there. There were multiple rebel units, who sometimes fought with each other, and some of these units could have one agreement, and other could have another agreement. The agreements often changed with time. Also, there still were people not involved in fighting and not related to rebels. So, I do not think that there would be a condition set by the government that nobody could stay. Logically, the condition could be that everyone who wanted could go.

    As you can see from the Wadi Barada evacuation and from many other evacuations, the government often proposes amnesty, and many rebels choose to stay. I do not think that this would be different in the Aleppo case.

  8. Jason DeFries

    Hi Nick,

    I think you misunderstand the Aleppo report. It says:

    “After the Government reached an evacuation agreement with armed groups in mid-December, residents of eastern Aleppo were transported from the city in government buses and private vehicles to Idlib, while others fled to western Aleppo. None had the option to remain in their home. As part of the agreement, more than 1,000 people were evacuated from Foah and Kafraya and went to Aleppo, Tartous, Homs and Latakia governorates. As warring parties agreed to the evacuation of eastern Aleppo for strategic reasons – and not for the security of civilians or imperative military necessity, which permit the displacement of thousands – the Aleppo evacuation agreement amounts to the war crime of forced displacement (ibid., paras. 50-51).”

    It calls the evacuation agreement carried out by buses and private vehicles from eastern Aleppo city to Idlib the war crime of forced displacement, based on the agreement, which was the order for purposes of a NIAC. The report also says “others fled to western Aleppo”, and those are the ones you mention who came back. The ones who fled from clashes in the northern districts like al-Shaar, which is where your guy in the famous photo is from. The Aleppo report by the Commission calls the agreement the order displacing people to Idlib, and none of those people have returned nor can they. Those who fled due to clashes and returned are not the ones forcibly displaced according to the Commission on Syria, though there is probably an argument they were too under ICTY case law, but that’s different.

  9. Jason DeFries

    Nick,

    See also this AJE news article from today from a survivor involved, which also states “everyone would be evacuated”:

    After long talks involving the Russians and rebel forces, it was agreed that the evacuation would start again. They said that it was serious this time and everyone would be evacuated. People started to gather again near the evacuation point the next morning and, after two hours, the buses started to come in around 11am, with the Syrian Red Crescent and Syrian Red Cross, as well.

    It was complete chaos. People were running, rushing towards the buses. The Red Crescent and Red Cross were trying desperately to organise the crowds, but there was no way they would be stopped. Thousands of people were rushing to secure a seat for themselves and their families, since they did not know if they would have another chance to get out. I wanted to get on a bus too, but I waited until most of the people had got on and left.

    http://www.aljazeera.com/indepth/features/2017/03/harrowing-evacuation-east-aleppo-170306060849177.html

  10. Nick Notan

    Hi Jason,

    According to my impression, you interpret the report in a rather specific way.

    For example, you state that “The Aleppo report … calls the agreement the order …”. Maybe you are right, but if this is the case, it means that the report could be written better.

    For another example, it is not clear to me from the report’s statement “… an evacuation agreement …, residents of eastern Aleppo were transported from the city … to Idlib, while others fled to western Aleppo. None had the option to remain in their home” that the expression “evacuation agreement” is limited specifically to those people, who went to Idlib.

    Actually, Ms. Pothelet herself has not excluded Western Aleppo, since she has written “… people had been evacuated from the besieged areas of Aleppo to Idlib province (for the most part) or to western Aleppo”.

    Furthermore, I cannot really see how you have reached the conclusion that “those are the ones you mention who came back”. Why are you sure that people seen in the linked movies had at some time left Eastern Aleppo in the first place?

    Also, even if these people have returned, please consider the last paragraph of the original posting: “Most importantly, whether they were lawfully displaced or not, civilians have a right to return … . It will be important to monitor whether the parties comply with the clear terms of this legal obligation – especially because it may be an indicator of the criminal nature of the displacement itself”.

    Thus, if some people have returned, Ms. Pothelet may now take this into account for her analysis.

  11. Jason DeFries

    Hi Nick,

    I think it’s pretty clear from the report itself that the agreement was the order. It says ““After the Government reached an evacuation agreement with armed groups in mid-December, residents of eastern Aleppo were transported from the city in government buses and private vehicles to Idlib, while others fled to western Aleppo. None had the option to remain in their home.”

    On the one hand there was an agreement or order, and on the other hand residents fled due to clashes. It’s definitely the case either way that civilians who were sent to Idlib haven’t returned, and that the transfer to Idlib was the forced displacement because the agreement was to evacuate civilians to Idlib, which is why an agreement was reached and buses and vehicles came to take civilians to Idlib. I read the report this way based on the sentences of the report I cited above in this post, and it makes the most sense to me. Whether or not some who fled due to clashes or in advance of clashes and later returned to the rubble remains of their homes is clearly different than the agreement/order to transfer more than 35,000 civilians to Idlib who are clearly not returning. If this is the forced displacement the Commission is referring to, than yes, none had the option to remain in their homes.

    What do you think?

  12. Nick Notan

    Jason,

    Had the agreement been an “order”, the report would apparently have said so. Also, even if there was an order, it could come solely from the rebels, since they had control, they could feel that it was up to them how to proceed with members of their households, and they could believe that they needed civilians as human shields.

    >> “the transfer to Idlib was the forced displacement because the agreement was to evacuate civilians to Idlib”

    No, because there was an option to go to the Western Aleppo, and also some people chose to remain or quickly return as seen from the linked movies. Also, the “agreement” does not mean “order” and many people could have wanted to be evacuated.

    >>”What do you think?”

    Ms. Pothelet has expressed her doubts (see the section “An order to displace?”, and a conditional statement “IF a war crime of forced displacement occurred in Aleppo …”).

    As I explained above, I had even more doubts.

    Now I have looked into who was in the Commission, and my suspicions have grown manifold: there were only three members, and one member is from the USA, and another member is Carla del Ponte.

  13. Jason DeFries

    Hi Nick,

    Are you a lawyer or jurist? Doesn’t seem so, my friend. You also seem limited to the facts in the report which cannot spell out every detail, but it is so patently obvious the agreement was the order ad that the forced dis^placement allegation related to the transfer of civlians to Iblib. How you do not see that is beyond me. Or, you were not follownig tht the southern districts in eastern Aleppo were the last to fall and at that point the agreement was made to order the displacement of 35,000 or so residents to Idlib.

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