Dr. Başak Çali, Senior Lecturer in Human Rights and International Law, Department of Political Science, University College London
A shell fired from Syria into the back garden of 38 year old Zeliha Timuçin, in the town of Akçakale, Turkey on 3 October 2012 killed her, her 3 children and her sister in law. The Turkish military retaliated by firing artillery salvos against Syrian targets over 3 days. This raises important, but, thus far, largely unaddressed, legal questions about what international law is applicable to both the shelling by Syria, and, crucially, Turkey’s response. The identification of applicable international law, in turn, has important consequences for the attribution of responsibility for the killing of these five civilians.
The line taken by the Turkish government immediately after its retaliatory attacks on Syria on 3 October 2012 was that its actions were ‘in accordance with international law and the rules of engagement of the Turkish Armed forces’. No clarification about what body of international law was forthcoming. Given that Turkey used military force, it could only be referring to the right to self-defence under Article 51 of the UN Charter and customary international law. Taking it further, and assuming there was an armed conflict between Turkey and Syria within the sense of Common Article 2 of the 1949 Geneva Conventions, principles of proportionality and military necessity with regard to targeting decisions under international humanitarian law would also apply. The reference to these two bodies of law assumes that events have indeed triggered their applicability. In reality, this is far from clear.
Has there been an armed attack against Turkey within the framework of Article 51 of the UN Charter?
The reaction of the NATO at its emergency session in Brussels on 3 October 2012 qualified the shelling as an “aggressive act against an ally” – thus supporting the view that Turkey was acting in self-defense under the ius ad bellum. On October 4th, a UN Security Council Statement condemned the Syrian attack demanding that “such violations of international law stop immediately and are not repeated.” The Security Council, however, did not qualify the shelling as an act of aggression nor made references to Turkey’s inherent right to self-defense as it did with, for example, Resolution 1368 on September 12th 2001.
Given that retaliation per se as a ground for use of force is forbidden in international law, the right to self-defence is indeed the only potential avenue through which to analyse Turkey’s decision to attack military targets in Syria. Such an analysis would require the Syrian shelling of Akçakale to be qualified as an armed attack within the context of Article 51 of the UN Charter. A closer inspection of events, however, shows that this is not so straightforward. The crux is to assess whether a shell falling into the back garden of the Timuçin family home constitutes an ‘armed attack’ within the confines of Article 51.
Importantly, media reports indicate that this was not the first shell that has dropped on Akçakale recently. Fighting between the Free Syria Army (FSA) and the Syrian Army in and around the Turkish border has been intense since mid-September. There is strong evidence (including its own press statements) that the FSA has military bases on the Turkish side of the border from where it has been mounting attacks into Syria. Furthermore, there is evidence that FSA militants, involved in incursions into Syria, have been present in Akçakale for some time (see here).
The Syrian government has frequently asked Turkey to control its borders and to stop militants from crossing its border. This is important evidence showing that the non-international conflict between Syria and the Free Syrian Army has been taking place across the Turkish border, resulting in Turkish village towns being left vulnerable to becoming collateral damage. Media reports published before October 3rd show that residents have been leaving Akçakale fearing for their lives since September. This invites us to ask important questions about the sequence of events. Was the Syrian Army responding to attacks that were mounted by the FSA in and around the border near Akçakale, or, conversely, did it fire these shells on Akçakale without any pre-existing attack from the FSA?
That Syria violated its obligations under international humanitarian law and the ICCPR is not in doubt. [DA3] What is not at all clear is whether the shells that have fallen on Akcakale are evidence of an armed attack against Turkey within the context of Article 51 of the UN Charter. This also puts Turkey’s retaliation into question. If the sequence of events was such that Syria was responding to an attack from FSA, Turkey’s decision to target Syria (provided that it is proportionate and only hit military targets) may, at best, be viewed under an unlawful counter-measure that may benefit from the ‘defence of necessity’.
Does Syria bear the sole responsibility for the death of the five civilians?
An analysis suggesting that Syria might have itself been acting in self defence (which runs counter to that of the Turkish Government and NATO) has implications for assigning legal responsibility for the killing of Zeliha Timuçin and her family and any subsequent reparations. It also raises the question: does Syria have the sole responsibility under international law for the deaths? Were the positive obligations of Turkey with regard to protecting the right to life of individuals under its jurisdiction not applicable at the time of the Syrian shelling? A look at the evidence we get from news reports of military activity around Akçakale suggests that, based on the balance of probabilities, the Turkish Government should have known of the danger of shells falling in the province. With this evidence to hand, has Turkey respected its positive obligations under Article 2 of the ECHR, as laid out, amongst others, in Oneryildiz v. Turkey (2002), to take all measures to protect life against third parties? This includes, for instance, monitoring the risk of such shelling and duly informing the residents of existing risks. The answer to these questions requires an effective investigation to be carried out by the Turkish prosecutors. This must be done alongside Turkey’s efforts to seek for reparation from the Syrian authorities for the death of its citizens. Syrian shelling of its rebels along the Turkish border cannot simply displace the international human rights law obligations of Turkey, its positive obligations in particular, owed to its own citizens. If such an effective investigation is not carried out, there is certainly a case to be heard by Strasbourg.
This clear legal problem will certainly not sit comfortably with those in Ankara and Brussels who would like to make political capital out of the events of Akçakale – but it’s the duty of international law to raise these uncomfortable questions.