Could European leaders be guilty of crimes against humanity in Syria ?

Since the start of the 2011 Syrian revolution, indiscriminate bombing and systematic destruction of medical care facilities led to the dead of approximately one million Syrian citizens. A man-made disaster of truly genocidal character.

Crimes against humanity , like the murdering and torturing of thousands of opposition members, the systematic bombing of schools, hospitals, bakeries, marketplaces, water stations…happened from the very onset of the conflict and were well documented. The Assad regime and its Russian and Iranian allies, are considered to be responsible for approximately 90 % of them.

But why may European leaders also be guilty to those crimes ?

To understand the full extent of this question, we first have to take a step back, and have a look at the foundations of our civilization.

One of these foundations is the obligation to help somebody in danger. It is a moral principal enshrined in Islam, Christianity and almost every major religion or philosophy on earth. The only circumstance in which you were allowed not to help somebody in danger is, when your own live or physical integrity might be in jeopardy.

Everywhere in the world this principal found its translation into criminal law.

Intentionally harming somebody or intentionally failing to act knowing that this failure would cause the relevant harm to happen, are both treated as criminal acts in courts throughout the world. They call the latter a crime of omission.

International Humanitarian Law, which deals with questions like crimes against humanity, is based on those same principles.

Article 2 of the Additional Protocol of the the Geneva Conventions, one of the main sources of International Humanitarian Law, explains that the principles of international law derive their authority from “(…)the principles of humanity and from the dictates of public conscience.

As a consequence, Article 1 of the Geneva Conventions provides that the parties to the convention “undertake to respect and to ensure respect for the present Convention in all circumstances. It is generally accepted that this principle requires that States do all in their power to ensure that International Humanitarian Law is respected universally.

And just like in criminal law, in cases of crimes against humanity and genocide, the failure to act knowing that this failure would cause the harm to happen, is considered a crime of omission.

The following five conditions have to be fulfilled in order to be recognized as such :

1. the accused must have had a legal duty to act

2. the accused must have had the ability to act

3. the accused must have had an elevated degree of concrete influence

4. the accused failed to act, (…)with awareness and consent that the consequences would occur; and

5. the failure to act resulted in the commission of the crime

Now let’s take a step forward, apply this to what happened in Syria in recent years, and investigate in how far European leaders probably may be considered as criminals against humanity for reason of omission.

1. The accused must have had a legal duty to act : check !

As we have discussed, the Geneva Conventions, which were ratified by most European countries, require that States do all in their power to ensure that International Humanitarian Law is respected.

The failure of international organizations like the United Nations or the European Union to act, does not exempt the individual countries from their obligations.

2. the accused must have had the ability to act : check !

States have several tools at their disposal to fulfill the duty “to do all in their power” in a peaceful way : among others (i) diplomatic protest, (ii) taking measures like : imposing sanctions, (iii) in case of grave breaches of the Geneva Conventions : vest universal jurisdiction in their courts in order to search for and trial persons who committed those grave breaches or ordered them to be committed…

The European leaders had absolutely the ability to use those tools.

3. the accused must have had an elevated degree of concrete influence : check !

As a matter of fact, Assad’s war machine, and thus the crimes against humanity committed by it, was largely, though indirectly, financed with European money.

Through it’s oil-and gas trade with Russia, untouched by the sanctions imposed in the wake of the Crimean occupation by Putin’s special forces, Europe finances approximately 35 % of the Russian federal budget.

Without this money, or even with only part of this money, it is unimaginable how Putin could have kept on financing and arming the Assad regime. And as all international observers agree, Putin’s support was key to the continuation of the armed conflict.

Europe had with other words, like no other power, through its oil and gas trade with Russia, truly the greatest degree of potential concrete influence on the Syrian armed conflict.

4. the accused failed to act, (…)with awareness and consent that the consequences would occur : check !

Failed to act” pertains not only to the question if there were any measures taken at all. It also pertains to the question if those measures were commensurate to the graveness of the breaches and taken in a timely manner.

Particularly in relation to grave breaches, parties to the Geneva Conventions have the obligation to investigate and eventually prosecute perpetrators, even if they don’t reside in their own country and the crimes were not committed on their territory.

And many of the war crimes documented in Syria were grave breaches : the systematic bombing of hospitals, the bombing of bakeries and marketplaces, the use of indiscriminate weapons like chemical weapons, mass torture and killing of members of the political opposition, attacking of relieve convoys and facilities, double-tap attacks,…

Unfortunately, none of the member states of the European Union lived up to their obligations. They did not order their courts to investigate the grave breaches and they only imposed sanctions on the weakest party to the conflict, the Assad regime, and spared completely those arming, financing and participating in those crimes : Russia and Iran.

European Union’s member states did this in full awareness of the consequences. Since the conflict is lasting for almost five years, they were fully aware that the lack of appropriate and timely pressure would lead to the continuation of the atrocities.

The element of “consent” can be derived from diplomatic custom. In diplomacy, sticking to appeals during years in the face of repeated crimes against humanity, equals to a free check for the perpetrators.

5. the failure to act resulted in the commission of the crime : check !

The refusal to take appropriate measures against the main parties to the conflict, Russia and Iran, led to a sense of impunity and inflamed the cruelties.

That became very obvious from September 2015 onwards, when Putin decided to engage his army more. It heralded an unprecedented intensity in air bombardments and crimes against humanity committed in their wake.

Especially the months August and September of 2016 were particularly brutal.

Observers described the committed acts as “worse than a butchery”, “a bloodbath”, “barbaric”, “abomination”, “spit in the face of international humanitarian law”.

On October 17, 2016 the European Secretaries of State and Ministers of Foreign Affairs had a meeting to discuss European foreign policy. Since there was no doubt about the direct Russian involvement, and some politicians had declared in interviews that they were considering sanctions against Russia, many observers expected that finally sanctions might be taken.

But none of that happened. Not one European member state had officially introduced a request of that kind.

The statement the European Foreign Affairs Council released after the meeting was full of empty appeals, not of the nature to make a big impression on Putin or Assad.

Since what had happened before was already “unbearable”, everybody knew that what was going to come was going to be “hell”.

Within a week after the European foreign affairs meeting, helicopters dropped leaflets above Aleppo that read : “You know that all have abandoned you and left you by yourselves to face your destiny and they won’t provide you with any help.”

On November 15,2016 after a three weeks lull, started the worst air bombing campaign and breaches of international humanitarian law the Eurasian region has witnessed since the Second World War.

Can there be any clearer link ?

All this leads us to the conclusion that European leaders could be guilty to crimes against humanity in Syria for reason of omission. It seems that they intentionally failed to act knowing that this failure would cause the relevant harm to happen. Doing so, they sinned against the principles of humanity out of which international humanitarian law has grown and took a very big risk. As opposed to the other parties to the armed conflict, most European countries signed and ratified the Geneva Conventions and their Protocols. They were even some of their main promoters. The irony of history could now be that at the long end they might be the only leaders to be trialled for crimes against humanity committed in Syria.

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