[TYPE THE COMPANY NAME]
Surrender Your Home
Analyzing the Prohibition on Forced Displacement
and its Occurrence in the Syrian Civil War
Daan de Grefte /2018
War creates displacement. This is because civilians will always flee violence from which they feel they are unable to protect themselves. Even though this is a harsh reality that has the potential of ruining many civilian lives and carries undesirable consequences for the international community as a whole, it is an integral part of war. The forcible transfer of civilians, however, is not an integral part of war. It is prohibited by international humanitarian law, but the exact contents of this prohibition remain debated. In this paper, the legal contents of the prohibition will be analyzed. The Syrian Civil War will be used as a case study, in order to understand the practical implications of the prohibition and to discover where the reality of contemporary conflicts warrants improvements to the prohibition. In the end of this paper the legal analysis will be combined with the factual investigation, so as to suggest recommendations to realize these improvements.
TABLE OF CONTENTS
1 Introduction………..2
2 The Legal Regime covering Forced Displacement………5
2.1 Forced Displacement in International Humanitarian Law………...5
2.2 Other Fields of International Law………9
2.3 Enforcement of International Humanitarian Law………..13
2.4 Disputed Aspects of the Prohibition………..14
3 Forced Displacement in Syria………23
3.1 Homs………..24
3.2 Foua and Kafarya………...29
3.3 Eastern Ghouta………...32
3.4 Perpetuating Displacement………35
4 The Law and Future Improvements………...36
Annex……….40
1. INTRODUCTION
From Libya to Sudan, through Palestine on to Myanmar, people are expelled from their homes during conflict, and unable to return after. Expulsion of people is often the consequence, but sometimes the aim of humanitarian law violations of parties to a conflict. The result of these expulsions is almost always an accumulation of humanitarian problems, grievances of the expelled people, instability and refuge-related issues for the entire region. They, in turn, make it nearly impossible for a lasting and just solution to the conflict to be implemented.
A fitting example of this problem, where according to numerous allegations about virtually all warring sides forced displacement is rampant, is Syria. The Syrian Civil War is now in its eighth year and to date, no significant progress has been made towards a political solution to the seemingly intractable conflict. Even if all the major regional powers that vie for political influence in post-war Syria would come to an agreement, the implementation of such an agreement would be infinitely more difficult as a consequence of the demographic change that is alleged in Syria, and the grievances that it is leaving behind. As a result of forced displacement, many different organizations and Syrians say, the entire social fabric of the Syrian state has been disrupted and therefore a solution to the conflict has only moved further away.
Due to the worrying amount of allegations in war-torn Syria, a factual investigation into who has committed these war crimes and where is warranted. Not just the dignity and chances of return to a normal life of the affected groups are at stake, but also the prevention of further similar crimes depends on whether or not the truth will eventually surface. Furthermore, once a permanent solution to this conflict is in the making, it is of crucial importance that the consequences of forced displacement in the context of this civil war will not be overlooked. Finally, for both the victims and the international community as a whole, it is crucial that the people responsible for these oftentimes irreversible crimes will be known to the world, in the hope that one day they can be held accountable for the destruction they caused.
In light of the points made above, this paper will primarily focus on two separate subjects. Firstly, a detailed analysis of the legal environment and the corresponding debate surrounding the practice of forced displacement in international humanitarian law will be made. After a general overview of the legal rules and standards of forced displacement, it will be studied where
the legal ambiguities exactly lie and thusly, where there is room for improvement. Secondly, a factual case-by-case investigation will be made into some of the alleged instances of forced displacement in Syria. What we learned about the legal landscape of this subject will be combined with facts, reports, interviews and other indicators of the situation on the ground. All this will ideally lead to the possibility to make observations about the current situation in Syria, and consequently will allow for the making of recommendations on how to provide for more legal certainty on the subject of forced displacement in international humanitarian law.
The case study of Syria will serve the purpose of illustrating the legal landscape encompassing forced displacement in international humanitarian law. It will allow us to illustrate the law in a practical manner, and show us the consequences of legal ambiguities and lacunae in the relevant instruments.
The aim of this paper is to answer the following question: what is the scope and legal content of the prohibition on forced displacement in non-international armed conflicts? It is of crucial importance to differentiate between international armed conflicts and non-international armed conflicts in this regard, as the characteristics of this prohibition diverge significantly depending on in which of these two contexts the displacement takes place. This divergence and the reasons for choosing to focus on non-international armed conflicts will be further explained below. In order to answer the question, a set of subsidiary questions will be posed and answered. How is forced displacement defined in international humanitarian law and how does it appear in practice? What are the legal debates and ambiguities surrounding forced displacement in non-international armed conflicts? To what extent has forced displacement taken place in the context of the Syrian Civil War? What legal and practical solutions can be found to more effectively prevent forced displacement in future conflicts? These questions will be answered using an array of different methodologies. A literature study will be combined with a study of primary and other sources of international humanitarian law, in order to research the prohibition on forced displacement in detail. Then, the conclusions of this research will be combined with empirical data on the Syrian Civil War, so as to show what practical issues arise. In the end of this paper, these findings will be used to make recommendations on how forced displacement might be more effectively combatted by international humanitarian law.
The author acknowledges certain difficulties in writing this paper, especially with respect to the factual part. It may prove very difficult to make definitive statements about the investigated cases, as it can be nearly impossible to retrieve facts about chaotic scenes during war. Also, the negative light this paper might cast upon various sides to the conflict will frustrate access to some of the most heavily impacted groups of civilians. However, numerous internationally renowned organizations which are known for their integrity have done some very promising research into this subject. This, combined with personal interviews and statements of relevant actors in Syria may help us understand a portion of the factual situation in Syria relating to forced displacement and will hopefully allow us to make solid observations based on facts. Perhaps, with the recommendations at the conclusion of this paper, a contribution can be made to the prevention of this nefarious practice.
2. THE LEGAL REGIME COVERING FORCED DISPLACEMENT
2.1 FORCED DISPLACEMENT IN INTERNATIONAL HUMANITARIAN
LAW
International humanitarian law (IHL) differentiates between two separate situations in times of war. The vast majority of international codification of IHL takes place within the classical framework of one sovereign state that is at war with another sovereign state. This situation is called an international armed conflict (IAC), and the Geneva Conventions of 1949 classify it as follows: ‘all cases of declared war or of any other armed conflict which may arise between two or more of the High Contracting Parties, even if the state of war is not recognized by one of them.’1 However, many contemporary armed conflicts occur largely within the borders of a state
and consist of confrontations between the armed forces of a state and other, non-governmental armed groups that do not operate under state authority. Such conflicts are referred to as non-international armed conflicts (NIACs), and even though they do not involve hostilities between sovereign states, they are regulated by a body of international law nonetheless.2
It falls outside of the scope of this research to thoroughly analyze the question of which types of conflicts are currently underway in Syria. Nevertheless, in order to show these conflicts in the light of the regime covering forced displacement in IHL, it is necessary to distinguish between both forms of armed conflict in our analysis. This is because there are certainly legal consequences of this distinction,3 which will influence the conclusions of this paper significantly.
Hence, the question of which type of armed conflicts are taking place in Syria and which of those will be focused on in this paper will be briefly discussed below.
First of all, it must be noted that there is not simply one armed conflict that constitutes the Syrian Civil War, but at the present day there exists a situation where there are multiple armed conflicts taking place inside the Syrian borders.4 To enable a legally thorough investigation into the law 1 See International Committee of the Red Cross (ICRC), Geneva Convention for the Amelioration of the Condition of the Wounded and Sick in Armed Forces in the Field (First Geneva Convention), 12 August 1949, 75 UNTS 31, art. 2.
2 Fleck D, The Law of Non-International Armed Conflict in International Humanitarian Law in Fleck D (ed), The
Handbook of International Humanitarian Law (Oxford University Press 2013), p. 581.
3 Gill TD, ‘Classifying the Conflict in Syria’, 2016 (92) International Law Studies (Naval War College) 353, p. 378. 4 RULAC (Geneva Academy), ‘Syria’, 14 February 2018, <http://www.rulac.org/browse/countries/syria>, accessed on 28 May 2018; Gill (n 3), p. 377; Human Rights Council, ‘Report of the independent international commission of
governing forced displacement in this paper, it will focus on the prohibition on forced displacement in conflicts of a non-international character. A reason for this is that it is generally agreed that multiple NIACs are currently underway in Syria, and the same agreement cannot yet be found with regards to IACs in the Syrian Civil War.5 Furthermore, as the legal regime
governing IACs is more developed and leaves less possibility for diverging interpretations, it will be more feasible to contribute to the development of the system governing NIACs. This is especially true in light of the numerous contemporary conflicts that are almost exclusively of a non-international character.
The first and foremost source of IHL regarding NIACs is art. 3 common to the 1949 Geneva Conventions.6 Following controversial negotiations from 1970 until 1977 this article was
developed and supplemented by the Additional Protocol II to the 1949 Geneva Conventions (AP II).7 This Additional Protocol was ratified by 168 states, but not by Syria.8 Even though the
specific provisions in AP II therefore do not create legal obligations for Syria, customary international law (CIL) binds all states. According to the Customary International Humanitarian Law Study of the ICRC, almost all provisions in AP II reflect CIL and thusly also bind Syria.9
Consequently, in order to identify the legal regime applicable to the Syrian Civil War regarding forced displacement, we need to examine the relevant provisions of AP II and those deemed CIL. The prohibition on forced displacement in NIACs is found in art. 17 AP II, which states:
1. The displacement of the civilian population shall not be ordered for reasons related to the conflict unless the security of the civilians involved or imperative military reasons so demand. Should such displacements have to be carried out, all possible measures shall be taken in order that the civilian population may be received under satisfactory conditions of shelter, hygiene, health, safety and nutrition.
2. Civilians shall not be compelled to leave their own territory for reasons connected with the conflict.10
inquiry on the Syrian Arab Republic’, A/HRC/25/65, 12 February 2014; Rodenhäuser T, ‘International legal obligations of armed opposition groups in Syria’, 2015 (2) International Review of Law, p. 8.
5 Gill (n 3).
6 Geneva Conventions, see (n 1) art. 3. 7 Fleck (n 2), p. 599.
8 International Committee of the Red Cross, ‘Treaties, States Parties and Commentaries: Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977’, < https://ihl-databases.icrc.org/applic/ihl/ihl.nsf/Treaty.xsp?
documentId=AA0C5BCBAB5C4A85C12563CD002D6D09&action=openDocument>, accessed on 28 May 2018. 9 Henckaerts JM and Doswald-Beck L, Customary International Humanitarian Law, Volume I: Rules (CUP 2005).
This article sought to fill the gap in protection of civilians in NIAC situations, as the problem had there been particularly acute and there had been cases of forced movement of ethnic groups and national groups opposed to the government.11 The article covers both forced movement of
civilians inside the country and to areas outside of the country.12 The scope of the article is
limited, however, to movement that is connected to the conflict. For example, moving civilians in case of a natural disaster is clearly not covered. Clearly, a distinction should be made between situations where civilians flee the general effects of war on the one hand and situations where civilians are forced by armed groups to leave their homes on the other. Only the latter falls inside the scope of the art. 17 prohibition and the general flight of civilians from war is seen as an inherent aspect of war, which is not generally possible, or even desirable, to prevent.13
It must also be noted that many take the view that this article does not only cover the direct action of an armed group to, for example, round up civilians and put them on to busses. Also, the more indirect forms that forced displacement can take are thusly prohibited by art. 17.14 This
indirect, but also prohibited practice of forced displacement can consequently also be constituted by threats, made in order to cause the flight of unwanted groups or individuals.15 However, this
point of view is debated, and this debate will be discussed in detail below.
In the Customary International Humanitarian Law Study of the ICRC (CIHLS), the provision in art. 17 AP II has been affirmed to have the status of CIL. Rule 129 B of this study is nearly identical to the above mentioned one:
B. 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. 16
10 International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of Non-International Armed Conflicts (Protocol II), 8 June 1977, 1125 UNTS 609, art. 17.
11 Sandoz Y, Swinarski C and Zimmermann B (eds), Commentary on the Additional Protocols of 8 June 1977 to the Geneva Conventions of 12 August 1949 (Martinus Nijhoff Publishers 1987), p. 1472 – 1473.
12 Ibid.
13 Cantor DJ, ‘Does IHL Prohibit the Forced Displacement of Civilians during War?’, 2012 24(4) IJRL 840, p. 841. 14 Roch MP, ‘Forced displacement in the former Yugoslavia: a crime under international law?’, 1995 14(1) DJIL 1, p. 6; Stavropoulou M, The Right Not To Be Displaced, 1994 9(3) American University International Law Review 689, p. 700.
15 Sandoz (n 11), p. 1474. 16 Henckaerts (n 9), rule 129 B.
The specifics and nuances of the CIL prohibition on forced displacement largely follow those of the provisions of art. 17 AP II, as the CIL prohibition is largely inspired by it.17 However, there
are some differences between the CIL prohibition and that of art. 17 AP II. For example, the ICRC highlights in its CIHLS through established state practice that the norm can also be violated by parties to a conflict as a consequence of their own acts, at least those that are prohibited in and of itself.18 In this light, indiscriminate attacks, terrorizing the civilian
population and other violations of IHL that force civilians to leave can also be seen as violations of this CIL prohibition.
The CIHLS also links the prohibition of forced displacement to the prohibition of ethnic cleansing, as these practices are often interconnected and accompanied by numerous other violations of IHL.19 Here it must be indicated that there is of course a difference between forced
displacement and ethnic cleansing. Ethnic cleansing is not necessarily linked to conflict and can be seen as an end that can be achieved through forced displacement. To ‘cleanse’ a certain area of the unwanted ethnic group, they can be forcibly displaced, but it can also be achieved through other, often atrocious means. Where a specific ethnic group is systematically forced to leave in situations of conflict with the intent to remove their ethnicity from the area, forced displacement becomes ethnic cleansing.
Although these rules might appear rather clear and unequivocal, in the years since the entry into force of AP II the debate on how to interpret them has flourished. This was perhaps to be expected, as the displacement of civilians during wartime was, prior to the adoption of AP II, regarded as a sovereign right of states.20 This reflects the challenging context in which this
protocol was adopted, as it effectively sought to impose rules upon states for how they must act in their internal conflicts. This had always been something that was purely up to states to decide, though the international community now deemed it necessary to ‘ensure a better protection for the victims of those conflicts.’21
17 Ibid, p. 459. 18 Ibid, p. 461. 19 Ibid, p. 462.
20 Willms J, ‘Without order, anything goes? The prohibition of forced displacement in non-international armed conflict’, 2009 91 International Review of the Red Cross 547, p. 551.
It is in this challenging context that the adoption of art. 17 AP II must be regarded. Not only was the adoption of this entire protocol contentious: specifically the provisions laid down in art. 17 were the most controversial of the entire drafting process of the protocol, and it should therefore be met with a certain degree of relief that states were able to reach an agreement on regulating this part of their previously internal affairs at all.22
The controversy surrounding these provisions caused states to formulate them in a less precise way, perhaps to allow for more room for maneuver in their implementation, or perhaps because it was simply the only way an agreement could be reached. This lack of legal precision, in practice, allowed legal ambiguities to be identified and scholarly debates about the exact meaning of the provisions to develop. These debates will be identified below.
2.2 OTHER FIELDS OF INTERNATIONAL LAW
HUMAN RIGHTS
Humanitarian law and the law of human rights have much in common, as both legal regimes have the purpose of protecting individuals.23 However, there are of course important differences
between the two bodies of international law. To name a few: human rights law applies primarily to peacetime situations, and within the framework of the legal relationship between a state and its citizens;24 human rights law applies almost exclusively within the territory of the state to which
the human rights obligations apply;25 human rights law binds only states and international
organizations, even though there are some who argue that it also binds organized armed groups, this is not yet the case.26
In situations where both human rights law and humanitarian law can be applicable, their relationship needs to be seen in the light of ‘mutual complementarity’.27 This principle means
that they should be seen as mutually reinforcing to complete and perfect each other, instead of
22 Cantor (n 13), p. 845.
23 Robertsson AH, ‘Humanitarian law and human rights’ in Swinarski C (ed), Studies and Essays in Honour of Jean Pictet (Nijhoff, 1984), p. 793 – 802.
24 J. K. Kleffner ‘Relevance of Other Fields of International Law’ in Fleck D (ed), The Handbook of International
Humanitarian Law (Oxford University Press 2013), p. 72.
25 Ibid. 26 Ibid, p. 78
27 Committee on Civil and Political Rights, General Comment No. 31 ‘The Nature of the General Legal Obligation Imposed on States Parties to the Covenant’, UN Doc. CCPR/C/21/Rev.1/Add. 13 (4 September 2006), paras. 2, 10 and 11.
excluding each other. Also, the lex specialis principle is applicable.28 The principle in this
situation means that in cases where two provisions of international humanitarian law and human rights law are contradictory, the law that is the most specialized to the situation (which in situations of war is usually international humanitarian law) should be applied. It should be noted that this lex specialis principle does not apply to the general relationship between the two bodies of law, but to specific rules in specific circumstances.29
There are provisions in human rights treaties and conventions that, albeit indirectly, prohibit states from subjecting their citizens to forced displacement. These provisions, taken together, are indicative of a human rights regime covering forced displacement.30 In light of the above, human
rights can be applicable in situations of armed conflict and accordingly, they are important to complement IHL. This is especially true in NIACs, where the relevant IHL regime is less developed than that of IACs and the distinction between situations of armed conflict and domestic affairs is harder.
The human right to not be forcibly displaced can be inferred from various instruments. Art. 13 (1) of the Universal Declaration of Human Rights (UDHR) enshrines the freedom of movement and residence, which is also found in art. 12 (1) of the International Covenant on Civil and Political Rights (ICCPR). A contrario the prohibition to forcibly remove individuals or groups can be derived from these norms. Art. 9 UDHR prohibits arbitrary exile, which is relevant in cases of forced displacement across state boundaries. Also, art. 17 ICCPR prohibits states to arbitrarily or unlawfully interfere in the homes of its citizens. If states are prohibited to interfere in the homes of citizens, they are a fortiori also prohibited from dispossessing them of that home. Moreover, the right to an adequate standard of living, including housing, is recognized in art. 11 (1) of the International Covenant on Economic, Social and Cultural Rights (ICESCR). The Committee on Economic, Social and Cultural Rights has described this right as meaning a “right to live somewhere in security, peace and dignity” and has held that “instances of forced eviction are prima facie incompatible with the requirements of the Covenant”.31 Furthermore, forced 28 Kleffner (n 24)
29 Ibid, p. 73
30 Tiwari AD, ‘Forced displacement as a war crime in non-international armed conflicts under the ICC Statute: exploring the horizons of a wider interpretation complimenting international humanitarian law’, 2015 5(2) Oxford Monitor of Forced Migration 39, p. 549.
31 Committee on Economic, Social and Cultural Rights, General Comment No. 4 ‘The Right to Adequate Housing (Art. 11 (1) of the Covenant)’, E/1992/23 (13 December 1991), para. 7 and 18.
displacement often has a discriminatory character. The targets of policies of forced displacement are frequently specific ethnic or religious groups. Therefore, where forced displacement is directed at such a group of individuals, the prohibition on forced displacement in human rights is also connected to provisions on the prohibition of discrimination, such as those in art. 7 UDHR, art. 26 ICCPR and art. 2 (2) ICESCR.
INTERNATIONAL CRIMINAL LAW
The effectiveness of international humanitarian law, like other fields of international law, depends greatly on the implementation of its rules by individual members of the international community. However, there are numerous cases in which a particular member of the international community has been unwilling or simply unable to implement these rules. This has led to situations where provisions of international law in general and specifically IHL were being violated with impunity, to the detriment of the peace, security and well-being of the civilian population. It was clear that something new was needed to regain trust in international humanitarian law and with this in mind, the international criminal tribunals and courts were created.32 There still is debate on exactly how effective these institutions have been in deterring
states and other actors in armed conflicts to commit war crimes, but it was certainly the aim.33
Even though enforcement of IHL is primarily the responsibility of states themselves – both domestically and through various international institutions tasked with calling out states for violating certain provisions – ICL is generally depended on when these mechanisms fail and this leads some to believe that the prosecution of these crimes is the best method with which the international community can ensure compliance with the Geneva Conventions and their Additional Protocols.34 Therefore, international criminal law (ICL) and IHL are very closely
affiliated with each other, and the development as well as clarification of either one has consequences for the status and clarity of the other.
32 Harhoff F, ‘It is all in the Process: Reflections on the Relation between International Criminal Trials and International Humanitarian Law’, 2009 78(4) Nordic Journal of International Law 469, p. 471.
33 For a detailed discussion on the effectiveness of international courts and tribunals in deterring violations of the Geneva Conventions and their Additional Protocols and an in-depth analysis of how successful these courts have been in actually holding perpetrators accountable for their war crimes, see Jenks C and Acquaviva G, ‘Debate: The role of international criminal justice in fostering compliance with international humanitarian law’, 2014 96 International Review of the Red Cross 775; Lingsma T, All Rise (Ipso Facto 2014).
International criminal trials have not only sought to ensure compliance with IHL provisions, they have also been instrumental in developing the substantive law of war crimes enveloped in the Geneva Conventions and their Protocols.35 Grave breaches of IHL have been broken down into
their specific mental and factual elements by international criminal tribunals and humanitarian law concepts have been further defined in the process of international criminal prosecutions: crimes such as ‘terror’ and ‘persecution’ have been given more exact meanings and terms such as ‘command responsibility’ and ‘armed conflict’ have been clarified in the process.36 With the
progressive development of ICL, which applies in times of armed conflict as well as in times of peace, important principles and rules of IHL have been reaffirmed.37
This has also been the case with the prohibition of forced displacement. Forced displacement in NIACs is very clearly marked a war crime in the Rome Statute of the International Criminal Court, for which individual criminal responsibility arises:
Ordering the displacement of the civilian population for reasons related to the conflict, unless the security of the civilians involved or imperative military reasons so demand38
The wording of this provision is very similar to that of art. 17 AP II, by which it was clearly inspired. Even though there are differences between the IHL prohibition on forced displacement and the international crime of forced displacement in ICL, which primarily are related to the requirements for criminal liability such as intent and guilt, the development of the ICL provision through international courts and tribunals affect its equivalent in IHL.
2.3 ENFORCEMENT OF INTERNATIONAL HUMANITARIAN LAW
The enforcement of IHL is achieved through multiple different mechanisms. Like other fields of international law, there is no unified, hierarchic structure within which IHL is enforced.39 The 35 Ibid, p. 470.
36 Ibid.
37 Kleffner (n 24), p. 78.
38 Rome Statute of the International Criminal Court, 17 July 1998, 2187 UNTS, art. 8 (2)(e)(viii).
39 Völenki, ‘Implementation and Enforcement of International Humanitarian Law’ in Fleck D (ed), The Handbook
effectiveness of IHL therefore depends on the ability of these different mechanisms to hold the perpetrators of violations accountable.
The first way in which IHL is enforced is through national courts. The four Geneva Conventions and Additional Protocol I require that the parties to them punish grave breaches of the provisions and that they take measures to ensure compliance with IHL.40 Ideally, states would therewith
enforce their own compliance with IHL.
Another mechanism through which IHL is enforced is the broader system of state responsibility.41 This system holds states accountable for internationally wrongful acts vis-à-vis
other states. The customary international law norms that constitute this system are reflected by the Articles on the Responsibility of States for Internationally Wrongful Acts (ARSIWA), as formulated by the International Law Commission (ILC).42 Violations of IHL constitute
internationally wrongful acts and states can demand reparation for and cessation of the violations through international bodies and courts. Besides this, states can also make us of lawful countermeasures or diplomatic pressure to enforce the obligations imposed upon states by IHL.43
As previously mentioned, ICL is closely linked to IHL. International criminal courts and tribunals contribute significantly to the enforcement of IHL, as grave violations of it will entail individual criminal responsibility. ICL is especially important when and where national mechanisms to enforce IHL fail and it focuses on the most serious breaches of IHL.
Furthermore, human rights bodies and courts also fulfill a role in the enforcement of IHL. They are usually only competent to conclude whether or not a certain act was in violation of human rights norms, but in this determination they take into account relevant provisions of IHL and
40 First Geneca Convention (n 1), arts. 49, 50; International Committee of the Red Cross (ICRC), Geneva
Convention for the Amelioration of the Condition of Wounded, Sick and Shipwrecked Members of Armed Forces at Sea (Second Geneva Convention), 12 August 1949, 75 UNTS 85, arts. 50, 51; International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Treatment of Prisoners of War (Third Geneva Convention), 12 August 1949, 75 UNTS 135, arts 129, 130; International Committee of the Red Cross (ICRC), Geneva Convention Relative to the Protection of Civilian Persons in Time of War (Fourth Geneva Convention), 12 August 1949, 75 UNTS 287, arts. 146, 147; International Committee of the Red Cross (ICRC), Protocol Additional to the Geneva Conventions of 12 August 1949, and relating to the Protection of Victims of International Armed Conflicts (Protocol I), 8 June 1977, 1125 UNTS 3, art. 85.
41 Völenki (n 39), p. 648.
42 International Law Commission, ‘Articles on the Responsibility of States for Internationally Wrongful Acts’, as adopted in and annexed to UNGA Res 56/83, UN Doc A/RES/56/83, on 12 December 2001.
when human rights violations are investigated in armed conflicts, IHL may apply as the lex specialis.44 In this regard, IHL is also enforced through human rights bodies and courts.
In fulfilling its task to maintain international peace and security, the United Nations Security Council (UNSC) also advances the enforcement of IHL. Even though traditionally, the UNSC was seen as only having the competence to enforce IHL in the context of a military breach of peace, this is gradually evolving.45 With its broad competences under Chapter VII of the UN
Charter, the UNSC is an important part of international enforcement of IHL.
2.4 DISPUTED ASPECTS OF THE PROHIBITION
As mentioned above, there is a lot to be said about forced displacement in IHL. A vast amount of scholarly work has been done on this subject and a fascinating debate has sprouted on how to exactly define the prohibition on forced displacement. Although this provides scholars and students with thought-provoking reading material, the fact that it is unclear what exactly is prohibited with the prohibition on forced displacement is counterproductive to combatting its occurrence. It should therefore be addressed and the various points of discussion should be identified. This can then form the basis for creating legal certainty and help prevent these practices that we see so often in contemporary conflicts.
ORDER
The art. 17 AP II prohibition on forced displacement specifically prohibits the ordering of displacement of a civilian population.46 When interpreted restrictively, this would mean that if,
for instance, civilians are made to flee their homes due to human rights violations by armed groups, these armed groups are not violating this provision.47 Furthermore, one could even argue
that if the armed group threatens the civilian population with punishment for staying, it will not count as an ‘order’ and therefore it will not be prohibited under the provisions of art. 17. As can be imagined, this strict interpretation would render the prohibition nearly futile. Governmental and non-governmental armed forces can in this way easily avoid accountability, as the only thing they have to prevent is a direct order to displace civilians to be traceable to their command.
44 Ibid, p. 692.
45 Ibid, p. 695; see for example UNSC Res 1755 (30 April 2007) UN Doc S/RES/1755 on the case of Darfur. 46 AP II (n 10), art. 17.
There is some confusion over why the drafters of AP II included this condition in the prohibition. Was it simply a general term, not meant to exclude instances of forced displacement that are not directly ordered, or did the drafters intend to significantly limit the scope of this prohibition? The most logical explanation seems to be the following: the forced displacement which the provision prohibits can only be executed by superior commanders who have the ability to foresee the displacement in violation of IHL. It is not reasonable to expect from a foot soldier, who may be carrying out the order, to know whether these acts are in reality to assure the security of civilians or demanded by imperative military reasons.48 The person to whom this provision is thusly
directed is someone in a position of authority. He is someone who can be reasonably expected to weigh these factors at the preliminary stages of the operation. This does not exclude responsibility of the soldier who is merely following orders,49 but it does indicate a focus on
commanders and other individuals with authority, who are in a position to give orders that lead to forced displacement.
To some scholars it is quite clear that the inclusion of the word ‘ordered’ in AP II stands in the way of accountability where civilians are forcibly displaced, but where it is not possible to prove that an order to set this displacement into motion was given. This, to them, is especially true in cases of criminal responsibility for war crimes or crimes against humanity before international criminal courts and tribunals.50 They argue only the ordering of forced displacement is
prohibited by art. 17(1) AP II, because when reading the war crime in a literal fashion, this word can be seen as an essential element.51
Others again are in favor of reading these criminal provisions in a more expansive way. It is argued that because the aim of international criminal law is to promote IHL and to deter states and individuals from violating it, they should be read in the light of IHL and its objective of protecting civilians from suffering in situations of armed conflict.52 Subsequently, it would be 48 Osiel MJ, Obeying Orders: Atrocity, Military Discipline and the Law of War (Transaction Publishers 1999) p. 181.
49 Doria J, Gasser HP and Bassouini MC, The Legal Regime of the International Criminal Court: Essays in Honour
of Professor Igor Blishchenko: in Memoriam Professor Igor Pavlovich Blishchenko (1930-2000) (Brill 2009), p.
640.
50 Carey C, ‘Internal Displacement: Is Prevention through Accountability Possible? A Kosovo Case Study’, 1999 (43) American University Law Review 244, p. 267
51 Ibid.
52 Tiwari AD, ‘Forced displacement as a war crime in non-international armed conflicts under the ICC Statute: exploring the horizons of a wider interpretation complimenting international humanitarian law’, 2015 5(2) Oxford Monitor of Forced Migration 39, p. 43.
logical to establish a link between practices leading to displacement and the forcible character of displacement.53 This interpretation would recognize international criminal law as complementing
IHL.
This reasoning conforms to the opinion expressed by some legal scholars on the subject of the broader, IHL prohibition on forced displacement. It is argued that the ‘order’ requirement in the provision should not be emphasized to a great extent.54 However, other legal scholars seem to
squarely disagree with this interpretation and bring forth their view that art. 17 (1) AP II only covers a relatively narrow form of action: it prohibits only the ordering of displacement.55 Some
strong arguments are brought forward to advocate for an inclusive reading of the provision. The most convincing of them are that this is an interpretation in good faith, according to the object and purpose of AP II, and that state practice after the adoption of the Protocol strongly supports this explanation.56
This observation of treaty practice after the adoption of AP II is a helpful tool in order to determine what exactly is meant by the term ‘order’ in art. 17 AP II, or rather what its meaning has become. Throughout the years there have been some relevant cases in this regard. In the case of the armed conflict in Bosnia and Herzegovina the General Assembly of the United Nations (UNGA) has in Resolution 46/242 condemned the violations of human rights and international humanitarian law, and included a condemnation of ‘ethnic cleansing’ policies.57 In its
condemnation the UNGA did not at all mention whether these forced displacements had been ordered. The resolution was accepted widely, only Yugoslavia cast a negative vote. Therefore it seems that among states, it is widely accepted that an order is not necessary to contravene the provision of art. 17 AP II.
Also, the United Nations Security Council (UNSC) has condemned forced displacement multiple times as a violation of international humanitarian law.58 It did not in a single condemnation seek
53 Ibid.
54 Willms (n 20). 55 Cantor (n 13). 56 Willms (n 20), p. 564.
57 UNGA Res 46/242 (25 August 1992) UN Doc A/RES/46/242, preamble (136-1-5).
58 UNSC Res 771 (13 August 1992) UN Doc S/RES/771, para. 2; UNSC Res 787 (16 November 1992) UN Doc S/RES/787, para. 7; UNSC Res 819 (16 April 1993) UN Doc S/RES/819, para. 7; UNSC Res 820 (17 April 1993) UN Doc S/RES/820, para. 6; UNSC Res 941 (23 September 1994) UN Doc S/RES/941, para. 2.
to establish an order being given by the parties that were being condemned. It seems that the UNSC thusly also does not think this is of essential importance to the violation of art. 17 AP II. Furthermore, national courts seem to agree with this interpretation, as is indicated by a ruling of the Colombian Constitutional Court.59 This ruling dealt with questions of forced displacement in
the case of the NIAC between Colombia and rebel armed groups, mainly the Fuerzas Armadas Revolucionarias de Colombia (FARC). In this ruling the Court held:
Protocol II also prohibits ordering the displacement of the civilian population for reasons related to the conflict […] The Court cannot disregard the fact that, according to the statistics compiled by the Colombian Episcopacy, more than half a million Colombians have been displaced from their homes as a
result of the violence and that, as stated in the investigation in question, the principal cause of displacement involves violations of international humanitarian law associated with the armed conflict.60
The Court states that forced displacement was caused by violence and violations of IHL specifically and did not give heavy weight to the requirement to order these actions in order to render them illegal under the regime of AP II. Although it should be noted that mere displacement as a result of violence does not fall under the prohibition, the Court clearly links the art. 17 AP II provision to displacement not directly ordered, but caused by violations of IHL. Therefore, this ruling is a further indication that, according to states, no order is necessary to violate art. 17 of the Protocol.
The question of whether or not an order is required when prosecuting violations of art. 17 AP II was almost answered in the case of Gotovina et al. of the International Criminal Tribunal for the former Yugoslavia (ICTY).61 Here the Defense raised questions about the indictment of Gotovina
for the crime against humanity of ‘deportation and forcible transfer’. The Defense argued that Gotovina should have been indicted for the crime against humanity of ‘forced movement of civilians’ which it argued is the counterpart of the first crime in situations of non-international armed conflicts.62 The Trial Chamber I however, elaborated that art. 5 of the ICTY Statute which
gives the ICTY jurisdiction over crimes against humanity, does not require an order to be
59 Constitutional revision of Additional Protocol II and the Law 171 of 16 December 1994, implementing this
Protocol, Constitutional Court of Colombia (1995) C-225/95.
60 Ibid, para. 33.
61 Prosecutor v. Gotovina et al., International Criminal Tribunal for the former Yugoslavia (ICTY) (2007) IT-06-90-PT.
proven.63 The Appeals Chamber simply held that the Defense did not properly challenge
jurisdiction of the Tribunal, but raised a question of interpretation of crimes which should be raised in the merits phase.64 Thus, both chambers did not answer the question whether or not an
order is required for a violation of art. 17 AP II or of CIL.
This question has been more clearly answered, however, by the Pre-Trial Chamber of the International Criminal Court (ICC). In confirming the charges against Bosco Ntaganda, the Chamber held:
… for the purposes of the war crime of displacing civilians, 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. The Chamber considers that, should that be the case, the actual circumstances of civilian displacement in the course of an armed conflict would be unduly restricted.65
In this light, the key issue seems to be not whether an explicit order can be established, but rather whether the acts of members of parties to a NIAC have forced civilians to leave.66 If consistently
interpreted in this way, the scope of the prohibition on forced displacement would be broadened significantly. Not only would it be easier to hold those responsible for past and present violations accountable, it would also deter future violators and with that, combat the occurrence of forced displacement in non-international situations of war.
EXCEPTION CLAUSES
As mentioned before, art. 17 AP II prohibits forced displacement only insofar as it is not realized to protect the ‘security of the civilians involved’ or is demanded by ‘imperative military reasons’. These caveats are a logical addition to the prohibition and can be seen to reflect the general spirit of IHL, which seeks to diminish suffering from war, but also respects the needs of warring parties to the conflict to complete their military objectives.67 Given the controversial 63 Ibid, Decision on Several Motions Challenging Jurisdiction, paras 24 – 28.
64 Ibid, Decision on Ante Gotovina’s Interlocutory Appeal against the Decision on Several Motions Challenging Jurisdiction, para. 15.
65 The Prosecutor v. Bosco Ntaganda, International Criminal Court (ICC) (2014) ICC-01/04-02/06, Decision on the Confirmation of Charges, para. 23.
66 Tiwari (n 52), p. 42.
67 See to this effect Mary Ellen O’Connell, ‘Humanitarian Requirements and Military Necessity in Fleck D (ed), The Handbook of International Humanitarian Law (Oxford University Press 2013), p. 36 – 37; Instructions for the Government of the Armies of the United States in the Field, General Orders No. 100, April 24, 1863 (Lieber Code) arts. 14 – 16 .
character of the Protocol as a whole and specifically art. 17,68 it can be understood that these
concessions were necessary in order to reach an agreement on the wording of the prohibition, and afford protection to civilians in this regard.
Even though these exception clauses are thusly an essential part of the prohibition, criticism has been voiced on the perceived margin of appreciation they leave to states when forced displacement occurs. The wording of the clauses is not necessarily unclear and the threshold for a consideration to reach the status of an imperative military reason is rather high. The International Committee of the Red Cross (ICRC) in its Commentary of 1987 stresses that imperative military necessity can only be invoked after a ‘most meticulous assessment of the circumstances’ and that the situation should be ‘scrutinized most carefully’, as the word
imperative aims to minimize cases in which displacement may be ordered.69 The Commentary
even specifically mentions that forced displacement can never be justified by political motives, such as the intention to more effectively control a dissident ethnic group.70
Nevertheless, some legal commentators are dissatisfied with the law on forced displacement as they argue the exception clauses make it fairly easy for violators of the prohibition to ‘muddy the water’. The interpretation of these clauses can be murky, they hold, and this causes concern over the possibility to use the terms ‘security of the civilian population’ and ‘imperative military reasons’ to hide violations of the rights and freedoms of individuals and groups protected by the provision.71 This has already in 1983 led to calls to create an appropriate legal instrument to
adequately deal with the problem of expulsions.72 As mentioned above, they think that especially
the term ‘imperative military reasons’ leaves a large margin of discretion for states to justify forcibly displacing people, and this raises doubts about the de facto protection that art. 17 AP II provides and suggests it could even be used to provide a legal basis for forcibly displacing civilians.73 This would certainly be counterproductive to the aim of the Protocol.
68 Cantor (n 13), p. 845.
69 Sandoz ( n 11) p. 1472 – 1473. 70 Ibid.
71 Mulaj K, ‘Forced Displacement in Darfur, Sudan: Dilemmas of Classifying the Crimes’, 2008 46 (2) International Migration 27, p. 37.
72 International Institute of Humanitarian Law, ‘1983 Report of the Working Group on Mass Expulsion’, 18 April 1983.
Especially in the case of NIACs, this can lead to worrisome situations. The UN has held that in these situations the forced removal of peoples can be “insidious, incremental and thus ‘hidden’, allowing the transferring agent to assert plausible deniability before charges of unlawful action”.74 This argument has been used in practice by Sudan to deny allegations of forced
displacement during the conflict in Darfur, as they held that the displacements were required by imperative military reasons.75
The question here is whether the exception clauses create legal gaps and frustrate the operation of the Protocol. The fact that the clause can be used as a justification for violations of the prohibition, does not constitute a reason to believe this is the case. It can be said that a certain displacement was required by imperative military necessity, but it remains hard to prove that this was actually the case. Furthermore, it is nearly impossible to imagine a clearer or more precise wording of the exception clauses than those in the current provision.
It seems then that forced displacement is legal until it can be proven that there actually were no imperative military reasons involved and that the security of the civilians did not warrant the displacement. However, this view is highly contested. Many professional opinions dismissing this claim can be found and many hold the view that actually forced displacement is always illegal, unless it can be proven that there were circumstances which fulfilled one of the exception clauses.76 The burden of proof rests, according to them, on the accused. This interpretation would
better correspond to the wording of the prohibition, as generally forced displacement is not allowed, but in exceptional cases of imperative military necessity or where the safety of civilians is at stake, the action can be legal. This exception should undoubtedly be proven by the accused. As follows, also the exception clauses of art. 17 (1) and their scope, use and implications for the prohibition on forced displacement in NIACs remain debated. Some clarity can be established on the meaning and consequences of the terms ‘security of the civilians involved’ and ‘imperative
74 Commission on Human Rights, ‘The Human Rights Dimensions of Population Transfer, Including the Implication of Settlers, Preliminary report prepared by Mr. A. S. Al-Khasawneh and Mr. R. Hatano’, E/CN.4/Sub.2/1993/17 (6 July 1993), para. 368.
75 International Commission of Inquiry on Darfur, ‘Report of the International Commission of Inquiry on Darfur to the United Nations Secretary-General Pursuant to Security Council Resolution 1564 of 18 September 2004’, Geneva (25 January 2005), <http://www.reliefweb. int/library/documents/2005/ici-sud-25feb.pdf>, accessed on 3 June 2018, para. 3.
76 Buck KG, ‘Displacement and dispossession: redefining forced displacement and identifying when forced displacement becomes pillage under international humanitarian law’, 2017 2(1) JIHA, p. 2 – 3.
military reasons’ in this provision, but their exact implications remain disputed. This has consequences for the enforcement of the provision.
FORCIBLE CHARACTER
Another aspect of the provision on which multiple explanations can be given is the forcible character of the expulsion. This aspect is linked, if not subsequent to, the order requirement of art. 17 (1) AP II and logically follows from the word ‘compelled’ in art. 17 (2) AP II. Questions are raised as to whether only the physical act of forcing people to leave constitutes a violation of the laws of war in this regard, or whether also the creating of conditions that make it practically impossible for a particular group of individuals to stay breaches IHL.77
It is obvious that the physical act of forcing people to leave, for instance by loading people on to a bus to the border at gunpoint, is abhorrent and definitively falls within the scope of art. 17 AP II. However, less direct forms of forced displacement are no less wretched and have exactly the same consequences, only oftentimes they go with more suffering before the actual displacement takes place. Consider the following example of less direct forced displacement taken from the conflict in the former Yugoslavia:
One account describes how the Serb militia took control of the governmental functions of Banja Luka, possible future capital of a Krajina Serbian enclave, and then "offered" Muslim inhabitants exit visas. Before the visa could be obtained, the Muslims had to sign their property over to the "state." For a $200 transportation fee, they would be transported by bus to Vlasic Mountain, at which point the militia would rob the refugees, strip them naked, take away, rape, and kill the younger Muslim women (". . . [t]hey could only hear the screams"), and then chase the remaining individuals across the narrow mountain pass into a Muslim enclave. Over several months in 1992, about 40,000 Bosnian and Croat civilians "volunteered" to
leave their homes in this manner.78
It seems, however, that the prevailing view on this question is that also these less direct forms of forcible displacement, even where for instance the human rights, developmental or environmental situation causes civilians to flee without them ever being physically forced to
77 Roch (n 14), p. 5.
78 Ibid., p. 6; this account was taken from Gutman R, A Witness to Genocide (Prentice Hall & IBD 1993), p. 120 – 125.
leave falls within the scope of the prohibition on forced displacement. This is summed up clearly in the Blagojevic and Jokic case before the ICTY:
It is the ‘forced character of displacement and the forced uprooting of the inhabitants of a territory’ that give rise to criminal responsibility. The requirement of ‘forcible’ describes a situation where individuals do not have a free or ‘genuine’ choice to remain in the territory where they were present. The element of
‘forcible’ has been interpreted to include threats or the use of force, fear of violence, and illegal detention. […] The trier of fact must consequently consider the prevailing situation and atmosphere, as
well as all relevant circumstances, including in particular the victims’ vulnerability, when assessing whether the displaced victims had a genuine choice to remain or leave and thus whether the resultant
displacement was unlawful.79
This interpretation follows the spirit of the Geneva Conventions and AP II. Even the less direct methods of forced displacement, like the story mentioned above, clearly do nothing to contribute to the attainment of military objectives respected by IHL. They cause unnecessary suffering to civilians, who are already suffering the general consequences of war.
3. FORCED DISPLACEMENT IN SYRIA
The Syrian Civil War has been ravaging the country for over seven years. Sadly, this war has become the stage of numerous violations of IHL, among which is the practice of forcibly displacing civilians. Various organizations, including the United Nations, have stated that forced displacement is happening in Syria and some have argued that it is an intrinsic part of the military tactics of the warring sides.80 Even though the conflict was primarily based on diverging
political inclinations and the simple question of whether the Syrian government lacked legitimacy, it soon morphed into a more sectarian conflict that divided Syria along religious lines.81
Information on the conflict has proliferated as it caused immeasurable suffering to Syrian civilians and the refugee-related issues spilled over into neighboring countries and even distant regions. Numerous reports, factsheets and articles have been published by non-governmental organizations, news groups and international organizations to shed some light on one of the worst conflicts in recent history. The sources from the most esteemed and unbiased of these organizations can be combined to illustrate a clear picture of what exactly is transpiring in Syria. In the previous chapter, different legal aspects and ambiguities of the prohibition on forced displacement in IHL have been set out. In this chapter, those findings will be combined with the sources mentioned before in an attempt to give a detailed, extensive overview of the situation in Syria regarding the prohibition on forced displacement. This will be done on the basis of certain areas of interest that have been heavily affected by the war. As mentioned before, there are indications that most armed groups fighting in the Syrian Civil War have violated the prohibition on forced displacement, not only the forces of the Syrian government. However, it is clear that the scale of these violations of other armed groups bears no comparison with that of the violations by government forces.82 Therefore, government actions will be studied primarily, but
not exclusively.
80 PAX and TSI, ‘No Return to Homs: a case study on demographic engineering in Syria’, 21 February 2017; Amnesty International, ‘We Leave or We Die: forced displacement under Syria’s reconciliation agreements’, 13 November 2017; Statement on Darayya and the situation in other besieged areas in Syria, UN Office for the Coordination of Humanitarian Affairs, 30 August 2016, <bit.ly/2xfc7y6>, accessed on 1 June 2018.
81 PAX (n 80), p. 17.
3.1 HOMS
Homs is a major Syrian city, located centrally between Damascus and Aleppo. It can be seen as the gateway city to the coastal, mainly Alawite (the Shiite sect to which Bashar al-Assad belongs) region. Importantly, it is also a city where many of the most significant military sites are located. Homs was the third largest city in Syria before the start of the war. It hosted the largest oil refinery in the country and was seen as a major industrial hub, as it connected important road and rail networks. The city reflected the religious diversity of Syria in general: the majority was Sunni, but there were significant Alawite and Christian minorities.83 Alawite
migration into Homs began some 20 to 30 years ago, when they moved from nearby towns and villages into the city. They clustered in particular neighborhoods, but the relationship with their Christian and Sunni neighbors was never strained.84
83 Human Rights Watch, ‘‘We Live as in War’ Crackdown on Protesters in the Governorate of Homs, Syria’, 11 November 2011; BBC News, ‘Homs: Syrian revolution's fallen 'capital'’, 9 December 2015.
84 An interviewed Homs resident describes how before the outbreak of the war and before the arrival of various Shia paramilitary groups and Syrian secret service agents there had never been animosity between the Sunni majority and the Christian or Alawite minorities. During the time of the interview, however, the interviewee was even afraid to tell his Alawite neighbors that he was still in touch with some of his Sunni friends: they would call him a traitor. From Nakkash A, ‘The Alawite Dilemma in Homs: Survival, Solidarity and the Making of a Community’, Friedrich Ebert Stiftung, March 2013, p. 14.
People in Homs started protesting rapidly after the beginning of the Syrian uprising in 2011, supporting the anti-government protests that had just started in the southern city of Daraa.85
These protests became widespread in Homs and many pictures of iconic scenes emerged out of the city which earned Homs the name ‘the capital of the revolution’.86 The government
responded to these peaceful protests with violence from the very beginning, which led some protestors to organize and arm themselves, led by defectors from the Syrian Arab Army (SAA).87
This situation soon morphed into a full-fledged civil war in 2012, when the SAA launched a major military campaign into the neighborhoods in Homs that were controlled by armed opposition groups. Within days the government forces had surrounded the opposition hotbed of Baba Amr and subjected it to a strangling siege. During this siege, the neighborhood was attacked with mortars, tanks and snipers.88 There is little indication that these attacks were aimed
at legitimate military targets, as satellite imaging as well as accounts of survivors show that the entirety of the neighborhood was seen as a target by the government forces. This includes residential homes, civilian infrastructure and media centers.89
When the armed opposition groups in Baba Amr surrendered, this was hardly the end of the fighting in Homs.90 Fighting flared up in other parts of the city and there the first use of the now
infamous barrel bombs by the government was documented.91 The suffering for the civilian
population in Homs was exacerbated because fighting between government forces and various armed opposition groups was combined with a series of massacres, mainly by the pro-government Shabiha militias.92 These massacres were carried out on specific ethnic groups and
85 The International Crisis Group notes that quick solidarity enjoyed by the protesters in Daraa from demonstrators in Homs came as a surprise to the Syrian regime, as the city enjoyed many privileges under the rule of Bashar al-Assad. International Crisis Group, ‘The Syrian People’s Slow Motion Revolution’, Middle East/North Africa Report No. 108, 6 July 2011, p. 18.
86 Human Rights Watch (n 83), p. 13. 87 PAX (n 80), p. 20.
88 Ibid, p. 21.
89 CBS News, ‘Syria denies massacre of 200 in Homs’, 4 February 2012; Anderson JL, ‘The Fall of Homs’, The New Yorker, 2 March 2012; Human Rights Watch, ‘Syria: New Satellite Images Show Homs Shelling’, 2 March 2012.
90 PAX (n 80), p. 23.
91 Human Rights Council, ‘Report of the independent international commission of inquiry on the Syrian Arab Republic’, A/HRC/25/65, 12 February 2014.
92 Human Rights Watch, ‘In Cold Blood: Summary Executions by Syrian Security Forces and Pro-Government Militias’, 9 April 2012; Barnard A, ‘Massacre Is Reported in Homs, Raising Pressure for Intervention in Syria’, New York Times, 12 March 2012.
in specific parts of the city, leading to the widely shared view that they were far from random, and served as part of a government strategy to force ‘unwanted’ residents to flee.93
The violence that was raging through Homs in the first half of 2012 caused the first significant wave of displacement, as many from Sunni-majority neighborhoods fled. As mentioned above, the intense fighting with tank shelling, artillery bombardments and sniper fire was added to routine detainment, harassment and sometimes the actual order to residents by pro-government militias to leave the area.94 In areas where the government reasserted control after the fighting,
confidence in the ability and willingness of the government to guarantee the safety of civilians who decided to stay was nonexistent. This lack of confidence was confirmed when the Shabiha pro-government forces massacred an estimated 250-300 people who chose not to flee the Deir Ba’alba neighborhood when it was captured by the government.95
Not only massacres like these, but also other abhorrent practices such as abduction and rape of women, men and children were common in Homs in this period. Due to the overwhelming amount of evidence for these heinous crimes, the UN Human Rights Council’s Independent International Commission of Inquiry on the Syrian Arab Republic found that they were part of a systematic policy of terrorizing and torturing the civilian population and that they could be prosecuted as crimes against humanity.96 It is, then, not surprising that this was also a significant
reason for many in Homs to flee.
Later on in 2012, many neighborhoods that had been mainly Sunni before the war had been reclaimed by government forces. These newly reclaimed parts of the city were now virtually empty.97 The emptied neighborhoods were mainly those that bordered on Alawite-majority
neighborhoods and according to many Alawite residents of Homs, this was a clear indication of the general government strategy.98 The implementation of this strategy is further evidenced by
93 PAX (n 80), p. 24. 94 Ibid.
95 France 24, ‘The massacre that almost went unnoticed: a survivor tells his story,’ 7 June 2012; Syrian Network for Human Rights, ‘Documenting Deir Ba’alba Massacre in April 2012’, 6 May 2012.
96 Human Rights Council, ‘Report of the independent international commission of inquiry on the Syrian Arab Republic’, A/HRC/21/50, 15 August 2012.
97 PAX (n 80), p. 26.
looking at the demographic change seen in Homs in that period, as is indicated by the following maps.99
Still, the conflict continued in the city, mainly through the imposition of suffocating sieges on neighborhoods that were still under the control of armed opposition groups. Negotiations between government and opposition forces started, brokered by Russia and Iran, and they were observed by the United Nations. By mid-July, an ‘evacuation deal’ was reached between them that would see fighters as well as civilians granted safe passage out of the city.100 Following that
deal, in multiple successive waves the city was emptied of armed, as well as civilian, opposition to the rule of Assad: from all the besieged areas in Homs, only about 100 residents would remain.101
These evacuation deals were, as described above, negotiated under UN observation and they were often implemented in their presence. Especially in this case, the UN has been accused of providing a false sense of security to civilians who were being displaced, as the population was not properly informed about the conditions of the evacuation and mistook the presence of humanitarian actors such as the UN as assuring their safety, which turned out to be far from the
99 PAX (n 80), maps 2 and 3. 100 PAX (n 80), p. 28.
truth.102 Many of the men evacuated under the deal were detained by the Syrian government
during the evacuation.103 There are even reports suggesting that some of these detained men have
been tortured and killed in detention.104
Homs has certainly seen a significant demographic change during the war. It is clear that where its pre-war population was mostly Sunni, this is no longer the case. The predominantly Sunni neighborhoods of the city have been subjected to strangulating sieges combined with massive, indiscriminate bombardments and sniper fire, which rendered them virtually uninhabitable. The lives of residents were further made impossible by harassment, arbitrary detention, abduction, and rape. Many of those who, despite all this, chose to remain in these areas as they were being recaptured by pro-government forces, paid with their lives. There are strong indications that these conditions of suffering were intentionally imposed on certain groups of residents in the city in order to make them leave. The groups that were targeted initially consisted of political opponents of the Syrian government, but as the war progressed this targeting got an increasingly sectarian character. Within the context of the conditions mentioned above, not only the direct orders from government forces to leave the area, but also the general flight of the ‘unwanted’ population and their displacement under the evacuation deals, constitutes forced displacement as prohibited by IHL.
102 Global Protection Cluster, ‘Humanitarian Evacuations in Armed Conflict,’ 24 November 2014.
103 Dagher S, ‘Fate of Hundreds of Men Evacuated From Homs and Detained in Doubt’, Wall Street Journal, 11 February 2014.
3.2 FOUA AND KAFARYA
As mentioned before, civilians have not solely been displaced by government forces. The infamous ‘siege and starvation’ tactic – which very often precedes forced displacement – has been widely documented during the Syrian Civil War and has become “routine and systematic” according to the UN Assistant Secretary-General for Humanitarian Affairs and Deputy Emergency Relief Coordinator.105 A telling example of this and especially the way in which
civilian lives have been used to achieve strategic ends can be found in Foua and Kafarya.
After armed opposition groups (primarily the Ahrar al-Sham Islamic Movement and Hay’at Tahrir al-Sham) captured Idleb city, they started besieging the Syrian government-controlled, nearby villages of Foua and Kafarya.106 Three months later, government forces captured the area
around the opposition-controlled towns of Madaya and Zabadani and started similarly besieging them. The fate of these four towns would become intertwined as both the Syrian government and armed opposition groups subjected their residents to “tit-for-tat” attacks.107
105 United Nations, ‘Starvation by Siege Now ‘Systematic’ in Syria, Assistant Secretary-General Tells Security Council, amid Warnings that Tactic Could Be War Crime, 15 January 2016.
106 Amnesty International (n 80), p. 61.
107 UN Office for the Coordination of Humanitarian Affairs, Under-Secretary-General for Humanitarian Affairs and Emergency Relief Coordinator, Stephen O’Brien: Statement to the Security Council on Syria, New York, 25 July 2016, bit.ly/2y112oH
