US has legal and moral responsibility to protect civilians at Syria's Rukban
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US has legal and moral responsibility to protect civilians at Syria's Rukban

Orient Net
Date: 2019-08-12 16:27
Americans like to think of our soldiers tossing candy bars to children as our forces pushed into France and Germany in 1944-1945, or of our airmen flying in thousands of tons of food to save West Berliners under siege from Joseph Stalin in the 1948 Berlin airlift. It’s a nice image of ourselves from the past, but the reality today in southern Syria is far different. There, thousands of desperate Syrian civilians suffer from hunger and lack of medicines at a barren refugee camp, others have died, all under the watchful eye of American special forces in a de facto American-controlled zone. Washington is trying to duck responsibility, blaming everyone but its own callous policy.

Both international humanitarian law and basic human morality dictate that we do more than complain about others. Instead, we must ensure that vital supplies reach that refugee camp so that no more civilians die from malnutrition and lack of medical care.

This part of southern Syria under American military control is called al-Tanf. It is near the junction of the Syrian, Jordanian and Iraqi borders. The US government for three years has controlled this 55-kilometer area and has repelled any other State’s forces that try to enter it. This allows the Americans to control the main road into Syria from Iraq, and, therefore, impede expansion of Iranian militias in Syria. If there was any question about American intent, in May 2017 when a convoy of Assad regime and Iranian militiamen approached al-Tanf, American aircraft destroyed it. Since then, the Americans have told the Russians, and through them, Damascus and Tehran, to keep clear of al-Tanf.

However, in asserting control of al-Tanf, Washington cannot ignore that Syrian civilians have also now been inside this de facto US-controlled zone for years. These civilians, while trying to escape Bashar Assad’s bombing, discovered in 2015 that US troops and air power protected the al-Tanf zone, and tens of thousands joined a small displaced persons’ camp called Rukban that was already there. American forces and their proxies watched as Rukban’s population swelled to about 50,000 by 2018. To survive in the moonscape-like desert, Rukban inhabitants depend on outside suppliers for all food and other essentials.

To reach the Syrians in the US-held area, UN aid convoys must gain permission from either Assad regime or Jordan to cross their territory. Once they reach al-Tanf, they must then gain permission from the United States to enter the area to then reach Rukban. Our allies the Jordanians used to allow essentials across the border, but since January 2018, have denied access from their side of the border. The United Nations refugee program has also tried to establish a supply chain from Damascus. The Assad regime, though, has refused to allow aid convoys to cross the regime-controlled area to reach the US-held area that, with US permission that has always been granted, would then create aid access to Rukban. Only twice in the past year has the Assad regime allowed UN aid convoys to pass through the Syrian-held territory in order to reach the camp from the Syrian side. Damascus’ gambit is clear: They want to embarrass the Americans and secure American withdrawal from this Syrian territory.

As conditions in Rukban worsened in 2018 and 2019, the Americans complained to Russia, who delivered the message to the Assad regime. This year, both the State Department spokesman and Ambassador James Jeffrey, the Syria policy point man for the US, denounced the Assad regime’s callousness in blocking aid to Rukban. The thrust of the US response is that Rukban is the responsibility of Syria, Russia and the UN Although there is an American-controlled airstrip inside the al-Tanf zone 15 miles from the camp, America hasn’t used it to rush supplies to Rukban.

To date, that American failure to protect civilians in the area under its control has been deadly. This winter, at least 14 children died of cold and malnutrition in this area under the control of US special operators. On June 5, a young woman and her newborn child died due to lack of medical care. Rather than starve in the cold desert, many civilians have left Rukban for at best an uncertain future in the clutches of the Assad government and its vicious security apparatus. About 25,000 civilians remain, according to a July 14 UN assessment.

On July 19, Jeffrey told the Aspen Security Forum that the United States could not provide humanitarian assistance lest it give the impression that US forces would stay in al-Tanf “forever.” According to Jeffrey, these people have no right to American aid. Worse, he suggested that if the American government does feed these people, Russia will argue the United States has become an occupying power, which would trigger legal obligations to the camp’s residents. He is right that, if the US controls an area as an occupying power, then the US must protect the civilians in that area.

But here is where he is wrong: The United States does not become an occupying power of an area because it feeds the people there. In those same remarks at Aspen, in which Jeffrey denied US responsibility, he twice said US forces would stay in Syria for an “indefinite” and an “indeterminate” time. This raises the question – under international law, is the United States “occupying” the al-Tanf zone in Syria, including the Rukban camp?

Under international humanitarian law it can be difficult to determine exactly when a foreign military presence becomes an occupation, and States are often reluctant to consider themselves an occupying power. The Hague Regulations of 1907 provide that “territory is considered occupied when it is actually placed under the authority of this hostile army.”

The US recognizes this standard, including in the Department of Defense’s (DoD) Law of War Manual, although the contours of what is required for territory to be actually under the authority of a hostile army are contested. For example, humanitarian law experts such as the ICRC interpret the precedent of international courts to mean that the standard for control is whether a State has the ability to assume de facto governmental functions, a standard that includes even the situation in which an occupying State exerts only indirect control over local authorities. In contrast, the DoD Law of War Manual states that occupation must be “actual and effective,” which requires that the occupying power “must have taken measures to establish its authority.” It also requires “the suspension of the territorial State’s authority and the substitution of the Occupying Power’s authority for the territorial State’s authority.” One touchstone for whether territory is “actually placed” under the authority of the hostile forces, according to the DoD manual, is that the occupying power can, within a reasonable time, send forces to enforce its authority within the area.

While acknowledging its position in the area, the United States has maintained that its presence at al-Tanf is not “hostile” to the Assad regime, arguing that any actions taken against Assad regime or allied militias in the vicinity are limited self-defense measures to protect counter-ISIS militiamen operating at al-Tanf from imminent attack. In addition, the US government has not set up a camp administration to run the Rukban camp. Lastly, Jordan and Syria influence whether aid can reach the camp, controlling the route to the “deconfliction zone.”

The facts, though, show the level of hostility and control that the US exerts in the area. The Assad regime certainly is not in control in the al-Tanf zone; blocking Assad or Russian or Iranian control is precisely the mission of the American forces deployed there. The US government did not enter the area at the invitation of the Assad regime, but rather in order to defend itself. The US government is the authority that exercises overwhelming military control over the area. US forces have repeatedly warned that they will attack anyone who enters the area, a threat that that was enforced by attacking pro-Assad regime militias who tried to enter al-Tanf. The US military’s bombing of Assad and allied militias in 2017 and 2018 has led the ICRC to conclude that the United States is in an international armed conflict with Syria. In addition, the Americans have enough of a government function in al-Tanf to recruit Syrian residents in Rukban to serve in its local Syrian militia. Washington is not allowing Assad regime police and customs officers to take over the border checkpoints or to control the roads going into al-Tanf.  The US government has all the ability to control the area, is in de facto military control now and, when it wants to do so, it exercises that control.

The scope of control that the United States exercises over Rukban suggests that it has attained the status of an occupying power in the al-Tanf region, including the responsibilities towards the civilian population located there imposed by the Geneva Conventions. The Fourth Geneva Convention of 1949 specifies the obligations of an occupying power in detail, including that it must “to the fullest extent of the means available to it” ensure adequate “food and medical supplies of the population” in the occupied territory. Moreover, as the Official ICRC Commentary to the Conventions makes clear, no loophole in civilian protection is permissible. The protections of the Fourth Geneva Convention apply to any person who finds themselves “in the hands of a Party to the Conflict or an Occupying Power of which they are not nationals,” regardless of whether a “stable regime of occupation” has been established. That clearly includes Syrian civilians in the US-controlled al-Tanf zone.

This is where Jeffrey’s remarks are so troubling. His comment that the US is not feeding the civilians at Rukban raises the possibility that it may be refraining from exercising authority at the Rukban camp – even though it has the ability to do so – for the purpose of attempting to avoid assuming legal obligations as an occupying power. That is wrong.

There was a time when Americans led the way in taking care of civilians under their military control. President Abraham Lincoln issued the first instruction to the US Army to protect civilians in a war zone; Lincoln’s order served as a basis for modern international humanitarian law. This history is important. In the middle of the Syrian mess, we need to remember who we are and what we should do. International humanitarian law indicates we have a responsibility, and basic human morality should push the Trump administration to step up at Rukban.

There are three possible ways for Washington to do so. First, it could find another provider of humanitarian supplies: for example, if Syria won’t allow UN access, Washington should press Jordan to allow immediate cross-border aid. If the Jordanians still refuse, Washington could give the UN access to its air strip in the al-Tanf zone. Lastly, the US could itself send in the aid. Providing aid to thousands of Rukban civilians admittedly would consume substantial American resources. What the US can’t do, however, is countenance suffering and death at Rukban while blaming the Syrians or the Russians or the Jordanians as we ponder our longer-term strategy in Syria. It’s not who we are as a country.

The Trump administration is arguing that there is a strategic benefit to holding al-Tanf. Some, including one of the co-authors here, have argued that with the ISIS’ territories captured, we should withdraw forces from Syria. The administration chooses to stay. Washington can’t have it both ways. If our forces remain deployed at al-Tanf, we own it. We thus must shoulder the responsibilities to ensure adequate food and medical supplies to the Rukban camp if there is no other provider. If we truly wanted to help suffering Syrian civilians, as we constantly say that we do, then we would start with those located in areas where we physically control access. We must take the morally responsible, and legally important, actions to get the vital aid to Rukban.

by Ambassador Robert Ford and Carolyn O’Connor

Edited according to Orient Net. Link to original source of Just Security

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