Obama’s red line : between urban myth and reality : a (quite) definite explanation

All observers of the Syrian war (2011 – ) agree that it was the lack of international pressure that led to a feeling of impunity on the battle field, which in turn inflamed the atrocities. Syrian opposition members, almost unanimously, blame Obama’s red line (August 2012) as one of the main reasons for opening the gates to all sorts of war crimes in Syria.

Because this is simply wrong, I have been criticizing this Obama-bashing from the very beginning. Making wrong analyzes leads to fighting the wrong foes (see the later part of this article). Maybe that is the intention of some, but it is against Islam and doesn’t serve the Syrian democracy movement.

Much of the “confusion” stems from a wrong contextualization. To understand this, let’s find out what Obama’s red line was all about.

For a historical flash back, I warmly advise the excellent Washington Post article “President Obama and the ‘red line’ on Syria’s chemical weapons”, that you can find here : https://www.washingtonpost.com/news/fact-checker/wp/2013/09/06/president-obama-and-the-red-line-on-syrias-chemical-weapons/?utm_term=.da439e0e8338 .

An Unilateral Military Intervention as an Act of Self-Defense

It is clear that the August 20,2012 interviewer, who triggered the whole debate, was talking about an unilateral military action from the US. According to the UN-charter, this is only allowed in cases of self-defense, and Obama’s answer followed that line.

The US maintains quite a large definition of self-defense, and interprets it as the right to the use of military force whenever its core national interests are threatened.

As such the US already defined in 2003 Assad’s chemical weapons as a threat to its national security interests. Obama reiterated this in his impressive September 23,2013 speech to the United Nations General Assembly. He stated that (quote) “we consider the use of chemical weapons in Syria to be a threat to our own national security” and that (quote) “The United States of America is prepared to use all elements of our power, including military force, to secure our core interests in the region.”

Obama could never have unilaterally intervened in the Syrian war for reasons of self-defense beyond the scope of what the US had defined as being its core interest. By definition would any military intervention have been limited to in one or other way the destruction of the chemical weapons stockpile or limited reprisal attacks.

From the other side, strictly taken, did Obama never publicly preclude a military intervention within a broader coalition like the one that was undertaken during the Libyan civil war (2011), with United Nations Security Council approval.

Neither did he publicly preclude a humanitarian military intervention like the one that was undertaken during the Kosovo war (1999), without United Nations Security Council approval.

Obama’s Isolation

It is just that there was absolutely no international support for this kind of interventions.

France and the UK, who were the driving forces behind the 2011 Libyan intervention, time and again publicly stressed that they would not take any action in Syria without the United Nations Security Council approval.

Practically all UN Security Council resolutions that were designed to put more pressure on the Assad regime (none of which foresaw military pressure), were vetoed by Putin’s Russia and Xi’s China.

When Obama tried to gather support for his limited military intervention against Assad’s chemical stock piles (2013), without Security Council approval, it was only France that was willing to go along. The UK-government did not get any go-ahead from its parliament, there was no support from the Arab League and there was no NATO-support. Any humanitarian military intervention would have met the same wall of silence.

In his September 23,2013 UN speech, Obama’s isolation became very obvious. He stated (quote) “I have made it clear that even when America’s core interests are not directly threatened, we stand ready to do our part to prevent mass atrocities and protect basic human rights. But we cannot and should not bear that burden alone.”

So those who blame the lack of military threat as the main cause for giving “the regime and its allies full immunity to kill the rebellious Syrians with other weapons.” (quote of Yassine Al-Haj Saleh from his October 06,2017 interview to alaraby.co.uk), should stop citing Obama’s red line as the principal cause. As an act of self-defense, it had absolutely nothing to do with it. The only way to put meaningful military pressure would have been the threat of a humanitarian military intervention or a military intervention within the Responsibility to Protect doctrine. These actions though bare little to no international support.

But by focusing on only military means, Obama’s Red Line criticizers draw away the attention from the circumstance that even the non-military means to put pressure on the warring parties were by far not exhausted. And those should always have priority. Military force should always be a last means of resort.

Wrong Analyzes Lead to Fighting Wrong Foes

And here I am coming back to what I said at the beginning : wrong analyzes lead to fighting wrong foes. Because where there might be some ambiguity about military intervention, there is no ambiguity about the use of peaceful means of pressure. And there where Obama will never be sued for any wrongdoing with his red line, because there was none, he and his European counterparts bear very well criminal liability for their deeds of omission, and might be obliged to pay reparations to the victims of these omissions.

The Crime of Omission

Let me explain.

International Humanitarian Law imposes that countries react to breaches of the treaties and take timely and commensurate measures to make them stop. Not taking those measures is a crime of omission, which is a very serious accusation. In international humanitarian law omission is equivalent to action and if omission can be attributed to a state, it will have to pay reparations to the victims.

It was already in early 2014 that the international diplomat Lakhdar Brahimi, then United Nations special envoy to Syria, accused the international community of crime of omission in relation to the Syrian war. As a diplomat he could not call out names. We can.

In what sense Obama and his European counterparts committed crimes of omission ?

The Laws of State Responsibility

It started with their refusal to apply the laws of state responsibility to the Syrian war. Those laws stipulate that countries who finance and arm regimes that commit war crimes and crimes against humanity, share responsibility for those crimes. This means that any action aiming at stopping those crimes has also to encompass those countries.

Within the Syrian war context, we have to point at the devastating role that Putin’s Russia and Chamenei’s Iran play. They finance, arm and fight alongside a regime that is responsible for 90 % of the one to two million deaths the Syrian war has caused. A regime that committed war crimes from the very beginning of the conflict, and which already by December 2013 the UN accused of having a character of crimes against humanity. Without their support, the Assadian regime would have collapsed economically by 2012/2013 or there would have been a political solution to the conflict.

Under normal application of the laws of state responsibility, Putin’s Russia and Chamenei’s Iran should have been subjected to the same crippling economic sanctions like the ones that were imposed on the Assadian regime. But none of this happened. Europe and the US obstinately refused to take any measures against those two war crimes committing countries.

Europe and the USA Might One Day Have to Compensate the Syrian Victims

In an TV interview October 2016, on the eve of the assault on East-Aleppo, and after a year of under Russian leadership committed unbearable crimes which observers called a “spit in the face of the international community”, the German minister for foreign affairs Frank-Walter Steinmeier had the guts to declare that sanctions against Putin’s Russia would not save Aleppo. Well, if the laws of state responsibility would have been applied, and timely and commensurate measures taken, the question about saving East-Aleppo would have never been posed.

Notwithstanding such brazen attempts to fool public opinion, year after year, with every publication of another devastating report about the multiple crimes committed by the Putin-Chamenei-Assad-coalition, and followed by another deathly silence from European and American leaders, the case for a crime of omission committed by those same leaders, and as such their states, has only been growing stronger. Time will tell if one day the victims will start suing them and will finally get reparations for their sufferings.

So far the criminal responsibility of American and European leaders.

The Other Foes

Honesty and completeness in the discussion of the real foes of the Syrian war, though without claiming to really have explained everything or named everybody, obliges us to cite some more names and clarify one more circumstance.

The Main Cause for the Deterioration of the Syrian War

First we have to mention Xi’s China. Together with Putin’s Russia it systematically vetoed all UN Security Council Resolutions that attempted to find a political solution, to investigate war crimes or to force respect for international humanitarian law. None of those resolutions foresaw a military intervention. This was an abuse of the veto-right and was the main cause for the deterioration of the Syrian war into a genocidal massacre.

A Crime Against International Humanitarian Law = A Crime Against Islam

Secondly we have to mention Saudi-Arabia, Turkey and Qatar. They kept on financing and arming rebel groups that did nor respect international humanitarian law. Knowing that international humanitarian law is simply a translation into treaties of the basic principles of Islam, it is remarkable that governments that pretend to protect Islam, violate the principles of Islam in such a gross way. The same counts of course for the Iranian government.

Financing and Arming War Criminals Is Illegal

Thirdly we have to clarify the assertion of Putin’s Russia and Chamenei’s Iran that their aid to the Assadian regime was legal. It was not. In international humanitarian law, and thus according to the principles of Islam, it is not allowed to arm, finance or fight alongside a warring party that systematically commits war crimes and crimes against humanity.

Beno Klee
October 20, 2017

One Million Deaths in Syria ? Really ? Really !

1. How does a war doctor get to the figure of 1 million deaths ?
2. Are these figures correct ?
3. The regime tries by all means to destroy evidence
4. In cases of doubt, we have to assume the worst case scenario
5. The civil war in Bosnia-Herzegovina : 1 % of the civilian population murdered within 3.75 years
6. The Russian-Chechen Wars : 5 to 10 % of the civilian population murdered within 2.5 years
7. Shedding light on wars’ dark figures : the indirect victims
8. Conclusion

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1. How does a war doctor get to the figure of 1 million deaths ?

The world was shocked when Staffan de Mistura, the UN Special Envoy for Syria, mentioned in April 2016 a death toll of 400,000 people. The last figure that the UN had put forward was 250,000. That was back in 2014. In the meantime they had stopped counting because it was difficult to corroborate the data.

Did the world really think, that people stop dying when you stop counting the death ?

Anyway, Staffan de Mistura emphasized that his calculation was not an official figure. The Syrian Center for Policy Research (SCPR) though came to a similar verdict. In an often cited study they estimated that the Syrian death toll could reach the number of 470,000 people.

Those figures were released at the beginning of 2016, the worst year of the Syrian war so far and that had just begun unfolding.

But it was the French doctor Raphaël Pitti who pointed out that even these figures might have been a huge underestimation of the real death toll of the conflict.

Dr. Pitti is a war doctor, who during the civil war trained medical personal in Aleppo, and who knows like no other the medical situation on the ground in war torn Syria.

He explained in a radio interview for France Inter, December 12, 2016, that for every person who died through the impact of direct armed violence (the normal casualty figures), you have to add at least one person who died through war-related sickness and hardships. That is because the regime systematically destroyed hospitals, medical facilities, drink water stations, electricity plants,…killed doctors and nurses. In those areas that were under siege (mainly by the regime), apart from food, medical supplies were not allowed in.

As a result, people with high blood pressure, sugar sickness, heart disease, kidney failure… simply died out of lack of medication.

Babies, mothers who had just given birth, the elderly, simply died because there were no doctors around who could attend to them in cases of emergency. And if they were around, they would not have the means to help them.

On top of that, people died from hunger, lack of (clean) drinking water or cold.

One can hardly imagine the hardships people went through in the besieged areas, cut of from medical supplies, food, drinking water and heating. ( Note : as of March 2017, there were still one million people living under siege in Syria)

Given that 500,000 people died a violent dead, Dr. Pitti concluded that the real death toll might easily reach one million.

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2. Are these figures correct ?

Our first answer is actually a question that might surprise you. Does that really matter ?

Should we let criminals commit war crimes as long as they haven’t massacred one million people ?

Or, let’s put the same question in an other way : from which moment onwards are we willing to take action : from thousand murdered, from ten thousand murdered, from hundred thousand murdered, … ?

The answer to that question is, that in International Humanitarian Law, it are rather the types of crimes committed that matter, than the numbers of victims.

But still, let us have a look at those numbers.

The fact is that making a correct calculation of the casualties is very difficult.

The Syria Center for Policy Research, for example, based it’s calculation of direct (violent) deaths on estimations from around 2000 people, presumed experts, from all over Syria.

On the other hand you have those organizations who conduct “body counts”. One of the most renown ones is the Syrian Violation Documentation Center. They counted so far (April 27, 2017) 105,911 civilian casualties and 44,241 non-civilian casualties. From the 105,911 civilian casualties, 11717 were women, and 18947 were children.

Those organizations face the difficulty though that they cannot be everywhere, and as such, they don’t pretend to list all the casualties.

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3. The regime tries by all means to destroy evidence

A major complicating factor are the regime’s and some rebel groups’ attempts to destroy evidence and to eliminate witnesses.

Especially doctors and nurses have the means and organization to record victim numbers and have been valuable sources of information.

That is one of the main reasons why the Assad regime systematically destroys hospitals, medical facilities and makes, apart from (citizen)journalists, doctors and nurses targets of aimed attacks.

A recent example were the attacks on hospitals after the chemical attack on Kahn Sheihoun on April 04, 2017.

Furthermore does the regime, with the help of Putin’s veto’s in the UN Security Council, not allow independent fact finding missions.

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4. In cases of doubt, we have to assume the worst case scenario

When committing crimes against humanity, dictatorial regimes have many means at their disposal to destroy, hide and fake evidence. And we know that they do just that.

Presumed innocence, a rule of law in normal circumstances, cannot be applied when the criminal, in this case the dictatorial regime, decides which evidence he will release and if this evidence can be verified or not.

That is why we have to assume the worst case scenario, unless a full, independent, and unhampered investigation into the crimes can be conducted.

An element that can help us in gauging in how far the information that reaches us is realistic, is the historic information about recent wars.

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5. The civil war in Bosnia-Herzegovina : 1 % of the civilian population murdered within 3.75 years

Between 1992 and 1995, during 3 years and 9 months, Bosnia-Herzegovina was the scene of one of the till then most brutal civil wars in recent history.

It is also one of the best studied civil wars.

Many crimes committed resemble the ones that we have been witnessing in Syria. The shelling of cities, the sieges, the mass murders against opponents…

During these 3.75 years approximately 1 % of the civilian population was killed. Though this figure is said to be rather conservative and the real percentage might be a bit higher, it was established after years of collecting evidence and seems to have a strong scientific foundation.

Notwithstanding the many similarities between the two conflicts, there are also distinct differences.

Syria counted in 2011 20 + million inhabitants, the Syrian war is lasting now for almost double as long, knows a large scale use of air bombardments, the use of chemical weapons, a larger scale of destruction of urban areas, a larger number of people submitted to sieges…

All this is an indication that the Syrian war knows a higher intensity and that the percentage civilian casualties might be higher than one percent .

This on its turn might explain why the known casualty distribution between civilians and non-civilians is very different between the two conflicts. Whilst in the Bosnian war the number of killed non-civilians was almost double the one of civilians, in the Syrian war the available body counts tell us a different story, the civilian population suffering double the losses of the non-civilian.

This pattern corresponds rather to the Russian-Chechen wars (Dec 94 – Aug 96 and Sept 99 – May 2000).

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6. The Russian-Chechen Wars : 5 to 10 % of the civilian population murdered within 2.5 years

Taus Dzhabrailov, back in 2005 head of Chechnya’s pro-Russian interim Parliament, took everybody by surprise when in August of that year he told the Russian news agency Interfax that between 150,000 and 160,000 people (combatants and non-combatants) had perished during those two wars. Was he drunk that he broke the Russian omertà surrounding the casualty figures of the conflict ? Should we assume that the old Latin saying, in vinum veritas (in wine there is truth – for Russians rather : in vodka there is truth) applied when he spoke out ?

His declaration though gave the statement of the former Russian Secretary of the National Security Council, Aleksander Lebdev, that during the 1st Chechen war between 80,000 en 100,000 civilians (between 6.6 and 8.3% of the civilian population) had been killed, more credibility.

Analyzing the figures given by the former head of the pro-Russian Chechen parliament, we reach a civilian death toll of about 10 % of the population. A carnage comparable to the slaughter perpetrated by Hitler’s army on Russian soil.

On the other hand, the death tolls human rights organizations have established are much lower. They estimate that around 6 % of the population perished in the onslaught. 4 % during the 1 year and 9 months of the first Chechen War and 2 % during the 9 months of the second Chechen war.

No matter which of those figures lies closer to the truth, fact is that they are staggering high, and prove that within a relatively short period a high percentage of the civilian population can be murdered. A circumstance attributed to the reckless air bombardments and shelling of densely populated urban areas by the Russian army.

Exactly the scenario that we have seen unfolding during 6 years in Syria.

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7. Shedding light on wars’ dark figures : the indirect victims

And what about Dr. Pitti’s assumption that for every person who died a violent dead (in general the figures referred to in the reports and body counts disseminated by the media), we have to add at least one person who died from war-related hardship and sickness ?

This was actually not simply a loose assumption, but a statement based on serious scientific research.

Epidemiologists, demographers, statisticians and human rights organizations have been working together in recent decades to establish scientific methods to estimate the indirect impact of wars on the population.

Not only was this necessary out of moral considerations : from that point of view is the distinction between a violent and non-violent death irrelevant. All that matters is that a number of people died who would otherwise still be alive if armed violence had not ravaged their communities.

But it was also necessary in order to better organize relief efforts and assess whether and to what extent international humanitarian law had been violated.

When a population is intentionally cut of from supply of medication, clean drinking water, food, heating, when hospitals, medical infrastructure are intentionally destroyed…though the people who died as a consequence from hardships and war related sicknesses did not die a violent dead, their deaths were brought by intentionally, which constitutes a war crime.

We know for example from the Bosnian war that the war against the public health system during that conflict, led to a doubling of people dying from hart attacks, a tripling of deaths of newborns, a doubling of deaths of mothers at birth, a serious spike in suicides, etc…

The studies that have been made from recent conflicts show that far more people die from indirect consequences than from direct violence. In general the ratio is situated between 3 and 15 indirect deaths for every direct death.

In the Iraq 2003-2007 war this ratio was much lower : 1.7 indirect deaths for every direct death.

Variation in the ratio of indirect to direct deaths depends on the pre-conflict level of development of the country, the duration of the fighting, the intensity of combat, access to basic care and services, and humanitarian relief efforts.

Dr Pitti’s estimation of 1 indirect death for every direct death could rather be a very prudent estimate when we compare the brutality of the Syrian war with its numerous sieges that locked up hundreds of thousands of people, the systematic destruction of hospitals, medical infrastructure, drink water stations, etc… to the Iraq war.

Note : this part was largely written based on articles from www.genevadeclaration.org

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8. Conclusion

The Syrian war is a mixture between the Bosnian civil war and the Russian-Chechen wars. The large scale use of air bombardments and the length of the conflict (as per March 2017 6 years, with 2016 as the most brutal so far) make it very probable that the direct civilian death toll is much higher than the 1 % in 3.75 years of the Bosnian civil war, but maybe not as high as the 6 to 10 % in 2.5 years of the Russian-Chechen wars. As a result could Dr. Pitti’s assumption of December 2016, that there might be 500 0000 direct deaths even represent a very conservative estimation. His assertion that we have to add at least one indirect death for every direct death, came not simply out of the blue, but has strong scientific evidence in support. One million deaths as a consequence of the Syrian war is thus absolutely a figure with a high probability value, but doesn’t even represent the worst case scenario : the actual number of victims could even be higher. Since we are dealing with a totalitarian regime, it is this worst case scenario that should determine our actions, until a full, independent and unhampered investigation into the crimes can be conducted.

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How the UN-Aleppo Report Might Backfire on Western Leaders

The Chairman of the UN Commission of Inquiry on Syria, Mr Paulo Pinheiro, became visible emotional at the UN Press Conference held March 01,17 when asked to elaborate on the potential implication of some of the great powers in war crimes committed in Syria.

He had just introduced the Commission’s Aleppo report, an inquiry into human rights violations in the Aleppo Governorate between July 21, 2016 and December 22, 2016. And its findings where almost the usual stuff for all those who follow the Syrian civil war since the very beginning : air strikes on schools, bakeries and markets, water stations, hospitals, use of chemical weapons, attacks on humanitarian convoys and installations, starvation as weapon of war …..all grave breaches of International Humanitarian Law. The difference this time ? The scale and the intensity of the attacks : unseen so far.

Mr Pinheiro refused to elaborate : “This is not new ! In all our reports I have said the same !”, he said. His obvious frustration is shared by the whole human rights movement. Every year the same war crimes, the same reports, and the same appeals to the international community and the UN Security Council to finally make those horrendous crimes stop and the perpetrators accountable. To no avail.

To better understand this frustration, we have to bear in mind what we are talking about : a genocidal massacre and a refugee crisis of epic dimensions : hundreds of thousands of civilians killed in indiscriminate bombings, according to French medics who worked in East-Aleppo there is a large dark figure due to the destruction of the medical infrastructure and the true numbers of people who died as a result of the war might reach one million, more than 10 million people forced to flee their homes, huge urban areas flattened, at least 17000 political opponents murdered, tens of thousands of people disappeared…

And this frustration doesn’t date since yesterday. It was already in 2014 that Lakhdar Brahimi, in his last official interview as UN Envoy to Syria, in a rare moment gave up his role as diplomat, and declared that the international community was complicit to what happened in Syria through its acts, but also through its omissions.

Wait a minute ! Complicit through omission ? Omission, the failure to act knowing that this failure would cause the crime to happen, is a punishable crime in ordinary criminal law ! And as a matter of fact, it also is in International Humanitarian Law, as constituted among others by the Geneva Conventions.

So could it be that the omissions of Western leaders were punishable criminal acts ? Let’s investigate.

Five conditions have to be met in order to be able to speak of a crime of omission according to International Humanitarian Law. We will focus our investigation on the European countries, because contrary to the US, they signed and ratified all Geneva Conventions and accept the jurisdiction of the International Criminal Court. The conclusions though may also apply to US leaders.

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

The Geneva Conventions 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 these obligations.

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

States have several peaceful tools at their disposal to fulfill the duty “to do all in their power”: (i) diplomatic protest, (ii) imposing sanctions (iii) in case of grave breaches of the Geneva Conventions : vest universal jurisdiction in their courts The Western leaders had absolutely the ability to use those tools.

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

International observers agree that Assad’s war machine was essentially kept afloat by Putin’s financial and military support. Knowing that Europe alone finances through its oil and gas trade with Russia, 35 % of the Russian federal budget, it is not exaggerated to postulate that Assad’s war machine was essentially fueled with European money. This gives Europe definitely an elevated degree of concrete influence.

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

Though many of the documented war crimes are considered grave breaches, none of the member states of the European Union lived up to their obligations. They did not order their courts to investigate 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 leaders did this in full awareness of the consequences. Since the conflict is lasting for six years, they were fully aware that the lack of timely and appropriate pressure would lead to the continuation of the atrocities.

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

This became all too 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, culminating in the worst period of the Syrian war, the assault on East-Aleppo as described in the Commission’s Aleppo report.

All this leads us to the conclusion that European leaders, and eventually US-leaders, for reason of omission might be complicit to the genocidal massacre in Syria. And with every report that is published, the case against them becomes stronger. The irony of history now is that, since the European countries are the only parties to the conflict who fully signed and ratified the Geneva Conventions, their leaders might be the only ones to be trialled for those crimes.

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.