Et tu, Brute? – Trump’s Betrayal of the Kurds and Failure to Prevent their Impending Genocide

In the late hours of 6 October 2019, the White House announced the withdrawal of US forces from northeastern Syria after a telephone call between US President Donald Trump and Turkish President Recep Tayyip Erdogan. The announcement shocked defense and intelligence officials and drew rare criticism from Republican lawmakers, who were not consulted before Trump’s decision and who viewed the withdrawal of US forces supporting the Kurdish militia fighting ISIS as an act of betrayal. According to the White House statement: ‘Turkey will soon be moving forward with its long-planned operation into Northern Syria. The United States Armed Forces will not support or be involved in the operation, and United States forces, having defeated the ISIS territorial “Caliphate,” will no longer be in the immediate area.’ 

The long-planned operation to which the White House statement referred was Erdogan’s plans to create a 20-mile buffer, or ‘safe zone’, within the Kurdish-controlled area of Syria in which the Turkish military plans to resettle the nearly 3.6 million Syrian refugees currently sheltered in southeastern Turkey. According to Erdogan, the Turkish military plans to accomplish this task by launching air and ground operations to ‘clear’ the proposed ‘safe zone’ of Kurdish ‘terrorists’ (i.e. the US-backed Kurdish militia known as ‘the People’s Protection Unit’ (YPG)) operating in the territory east of the Euphrates River, where nearly 2 million ethnic Kurds live. 

In light of domestic backlash to his perceived betrayal of the Kurds, Trump threatened to ‘totally destroy and obliterate’ Turkey’s economy if Erdogan took steps that in Trump’s ‘great and unmatched wisdom’ were ‘off limits’. Despite the threats, the Turkish military began attacking Kurdish-held border towns with airstrikes and artillery, killing an unknown number of civilians and displacing an estimated 100,000 Kurds. By all accounts, this is just the beginning.  If Trump does not act, Erdogan’s plans to destroy and clear the Kurdish ‘terrorists’ from the ‘safe zone’ will be realized. This post will discuss why Trump, as the President of the United States, has a duty to use everything within the US’s means to prevent the realization of Erdogan’s plans under international law.

Article I of the Genocide Convention and customary international law provide that states, including the US, have a duty to prevent genocide. The scope of the duty to prevent genocide under conventional and customary law is determined by the due diligence standard. As I discussed in Opinio Juris’ symposium on my book A Duty to Prevent Genocide: Due Diligence Obligations among the P5, due diligence is comprised of objective and subjective elements:

 [T]he objective element of due diligence … depends on a state’s capacity to effectively influence actors committing or threatening to commit genocide against a [national, ethnic, racial, or religious] group. This capacity, in turn, depends on the geographical distance of the state in question from the territory on which genocide is occurring or likely to occur, as well as on the political, military, economic, and other links between the state and the suspected génocidaires. In addition, a state’s capacity to influence ‘varies greatly from one [s]tate to another’ and changes depending on the state’s ‘particular legal position vis-à-vis the situation and persons facing the danger, or the reality, of genocide.’ (Bosnian Genocide case, at para. 430). In this way, the capacity to effectively influence incorporates the ‘principle of common but differentiated responsibilities,’ which provides, in essence, that the more a state can do, the more it must do. However, the capacity to effectively influence also contemplates a duty to cooperate on the part of all states to pool their resources in an attempt to prevent the genocide.
 
The subjective element of due diligence requires some degree of knowledge on the part of the state that there exists a serious risk that a relevant harm, such as genocide, might occur. In this regard, knowledge is determined by the ‘knew or should have known’ standard stemming from actual or constructive knowledge of the relevant events, which, in the context of genocide, should be interpreted in light of any history of hatred between the relevant groups. If a state has or should have had this knowledge, and ‘has available to it means likely to have a deterrent effect on those suspected of preparing genocide, or reasonably suspected of harbouring specific intent (dolus specialis),’ it is under a duty to exercise its capacity to effectively influence the relevant actors and make use of all available means to prevent the genocide from occurring. (Bosnian Genocide case, at para. 431). This dolus specialis may be proven by, inter alia, the general context of the relevant events or the existence of a plan or policy to commit genocide. (Mladić case, at para. 3457).

If the objective and subjective elements of the due diligence standard are satisfied, then the state’s duty to prevent genocide is triggered; meaning, the state must use everything with its means, including any privileged legal position within international institutions, such as the UN, to avert the atrocity.

In this case, there is no question that the US has the capacity to effectively influence Turkey in stopping its attacks on the Kurds in Northern Syria: but for the US’s withdrawal from Syria, the present campaign to destroy and clear the ‘safe zone’ of the euphemistically described Kurdish ‘terrorists’ would not exist. In addition, there is no question that the US, via Trump’s phone call with Erdogan, knew or should have known about not only Turkey’s plans to destroy, in whole or in part, the ethnic Kurds living in the so-called ‘safe zone’ in the Kurdish region of Syria that approximately 2 million Kurds call home, but also the history of hatred between the Turks and the Kurds. (As every criminal lawyer knows, Erdogan’s possible motives in this regard – that he saw an opportunity to distract the Turkish populace from the economic and political problems at home by engaging in military misadventures abroad – is neither necessary nor sufficient in proving the existence of dolus specialis to commit genocide.) As a result, the objective and subjective elements of the due diligence standard have been satisfied in this case and the US’s duty to prevent genocide has been triggered. The US must, therefore, use everything within its means to prevent Erdogan from realizing his goal of clearing the ‘safe zone’ of ethnic Kurds. At a minimum, this means that the US must use its privileged legal position within the UN Security Council and not veto measures aimed at halting Turkey’s genocidal campaign, which the US failed to do in a closed session of the Security Council on 10 October 2019. What the particular circumstances of this situation call for, however, is that the US exercise its considerable capabilities and reinsert its forces in support of its Kurdish allies. Such a move will halt Turkey’s advance, and with it, prevent any genocide of the Kurdish people from taking place.

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In Dante’s Inferno, the Ninth Circle of Hell is reserved not for those who murdered, raped, or blasphemed, but for those who betrayed. At the Center of Hell, frozen in ice, sits Satan, chewing on Judas, who betrayed Jesus, and Brutus and Cassius, who betrayed and assassinated Julius Caesar. Regardless of faith, there is an important lesson in Dante’s allegory, which Trump would be wise to heed. Et tu, Brute? – The Kurds have been asking this question all week. The President should think long and hard before he responds. The fate of the Kurdish people, the stability of the Middle East, and the future of the international order are at stake.