By Mike Franken

In the past weeks, there have been numerous articles condemning President Trump’s securing of oil fields in southeastern Syria amidst the United States withdrawal from the conflict.[1] Further, there has been discussion on whether or not these acts are war crimes under the United States War Crimes Act and international law.[2] There are several legitimate reasons for the United States to use military personnel to guard Syria’s oil fields[3], but the accusations of criminal conduct stem from President Trump stating that he wants to sell the oil to pay back the money the United States spent in the conflict.[4]

Those who accuse the Trump Administration of war crimes claim the United States is pillaging Syria’s oil which would be a violation of the War Crimes Act, 18 U.S.C § 2441[5]. Sections 2441(c)(1–2) of the War Crimes Act define what constitutes a war crime[6]. Under these sections an act is deemed a war crime if it is prohibited by the Geneva Convention of 1949 as a “grave reach”[7] or if it is prohibited by a series of articles by the Annex to the Hague Convention IV (“Hague Convention”).[8]

Article 147 of the Geneva Conventions of 1949 prohibits “the appropriation of property, not justified by military necessity and carried out unlawfully and wantonly.”[9] The other prohibitions under Article 147 include acts against individuals such as killing, torture, and unlawful deportation indicating that the focus was on individual property and not state owned resources.[10]

Article 23(g) of the Hague Convention prohibits “destroy[ing] or seize[ing] the enemy’s property, unless such destruction or seizure be imperatively demanded by the necessities of war.”[11] Contrarily, Article 53 of the Hague Convention expressly allows for the capture of cash, funds, realizable securities that are the property of the State and “generally, all movable property belonging to the State which may be used for military operations” as spoils of war.[12]

The important distinction between these laws stem from the difference of enemy forces seizing private versus public property.

Even U.S. law recognizes the right to spoils of war under 50 U.S.C. § 2204 by defining the spoils of war as “enemy movable property lawfully captured, seized, confiscated, or found which has become United States property in accordance with the laws of war.”[13] In conjunction, United States law under § 2201 allows for spoils of war to be transferred “to any other party, including government, group, or person, by sale, grant, loan or in any other manner.”[14]

If Syria’s oil is considered the enemy’s property than taking it is a war crime under U.S. federal law. However, the oil is owned by the Syrian government so the Trump Administration taking it probably does not violate federal or international law.[15]

[1]Patrick J. McDonnel, Trump says he Wants to Keep Syria’s Oil. Here’s the Problem, LA Times, (Nov. 4, 2019), https://www.latimes.com/world-nation/story/2019-11-04/trump-syria-oil-problems; Robin Wright, Trump’s Baffling Plan to Pillage Syria’s Oil, The New Yorker, (Oct. 30, 2019), https://www.newyorker.com/news/our-columnists/trumps-baffling-plan-to-pillage-syrias-oil.

[2] Negar Mortazavi, Trump Wants US Companies to Tap Syria’s Oil, Despite Experts Warning that could be a War Crime, The Independent, (Oct. 29, 2019), https://www.independent.co.uk/news/world/americas/us-politics/trump-syria-oil-us-companies-middle-east-war-resources-a9175266.html; William Saletan, Trump’s Oil Obsession is a War Crime, Slate.com, (Oct. 29, 2019), https://slate.com/news-and-politics/2019/10/trump-syria-oil-war-crime.html.

[3] William Saletan, Trump’s Oil Obsession is a War Crime, Slate.com, (Oct. 29, 2019), https://slate.com/news-and-politics/2019/10/trump-syria-oil-war-crime.html (claiming that preventing ISIS from using the oil fields is a national security interest or protecting the fields for Kurdish forces).

[4] Patrick J. McDonnel, Trump says he Wants to Keep Syria’s Oil. Here’s the Problem, LA Times, (Nov. 4, 2019), https://www.latimes.com/world-nation/story/2019-11-04/trump-syria-oil-problems; Robin Wright, Trump’s Baffling Plan to Pillage Syria’s Oil, The New Yorker, (Oct. 30, 2019), https://www.newyorker.com/news/our-columnists/trumps-baffling-plan-to-pillage-syrias-oil.

[5] War Crimes Act, 18 U.S.C § 2441 (1996) (showing that pillaging would be a violation of § 2441(c)(2) because the Hague Convention expressly prohibits pillaging in article 28).

[6] War Crimes Act, 18 U.S.C §§ 2441(c)(1–2) (1996).

[7] War Crimes Act, 18 U.S.C § 2441(c)(1) (1996)(stating that anything that falls under the Geneva Conventions’ term “grave breach” is defined as a war crime.

[8]  War Crimes Act, 18 U.S.C § 2441(c)(2) (stating that anything prohibited by Article 23 of the Annex to the Hague Convention IV is a war crime).

[9] Geneva Convention Relative to the Protection of Civilian Persons in Time of War art. 147, Aug. 12, 1949, 6 U.S.T. 3316, 75 U.N.T.S. 221.

[10] Id.

[11] Laws and Customs of War on Land (Hague Convention, IV) art. 23(g), Oct. 18, 1907, 36 U.S.T. 2277, U.N.T.S. 539.

[12] Id.

[13]50 U.S.C. § 2204 (1994).

[14] 50 U.S.C. §2201(a) (1994).

[15] Energy Information Administration, country analysis briefs: Syria (2011) (stating that Syria has two government-controlled oil companies).