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Home EJIL Analysis A Collective Failure to Prevent Turkey’s Operation ‘Peace Spring’ and NATO’s Silence on International Law

A Collective Failure to Prevent Turkey’s Operation ‘Peace Spring’ and NATO’s Silence on International Law

Published on October 14, 2019        Author: 
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Since last week Turkey has been using massive military force in Syria. Turkey has decided to call her military operation ‘Peace Spring’. ‘Peace Spring’ seems to be even more extensive than ‘Olive Branch’, Turkey’s preceding invasion of Syria. ‘Peace Spring’ has already resulted in the flight of tens of thousands of civilians. Worldwide, observers fear that ‘Peace Spring’ could lead to a humanitarian catastrophe in Syria, a country whose people have been suffering from unspeakable pain for many years now. There is also widespread fear that the so-called ‘Islamic State’ could benefit from ‘Peace Spring’ as the use of force is being directed against precisely those Kurdish forces that had helped keeping the ‘Islamic State’ at bay. It thus appears that a depressingly large number of indications suggest that the name ‘Peace Spring’ is a cynical euphemism for a brutal military course of action possibly ending in a bloody disaster.     

In her letter to the United Nations, Turkey invokes her right of self-defence, as recognized in Article 51 of the UN Charter, ‘to counter’ an ‘imminent terrorist threat’. The ‘facts’ that Turkey refers to in this letter are essentially those:

‘In particular, PKK/PYD/YPG units close to Turkish borders in the north-east of Syria, continue to be a source of direct and imminent threat as they opened harassment fire on Turkish border posts, by also using snipers and advanced weaponry such as anti-tank guided missiles.’

Under international law, the right of self-defence exists if an armed attack against another State occurs. In such a case, cross-border defensive forcible action is permissible to the extent that the action is necessary and proportional to counter the attack. The existence of a right of anticipatory self-defence has long been controversial. An arguable case can be made that such a right exists if an armed attack against a State is imminent. It is also a matter of fierce debate whether a right of self-defence exists in case of a non-State armed attack and whether it may justify forcible defensive action on the territory of another State. An arguable case can be made that such a right exists where a State is either unwilling or unable to prevent a non-State group from conducting a large-scale cross-border armed attack from the territory of that State – under strict conditions of proportionality.

Even on the basis of such a broad understanding of the right of self-defence, which is being fiercely rejected by a significant number of States and by a significant number of highly respected international lawyers as being unduly permissive, it is impossible to see how Operation ‘Peace Spring’ could be justified under international law. The alleged ‘harassment fire’ by Kurdish units is being referred to in the Turkish letter in such a vague form that it is almost impossible to be verified. Even assuming there had been cross-border Kurdish ‘harassment fire’ at some point or points in the past, it is not apparent how this could reach the intensity threshold for a non-State armed attack. Even less is it apparent how Turkey’s massive use of force could be necessary to counter such ‘harassment fire’. No surprise then that Turkey neither uses the crucial legal term ‘armed attack’ in her letter nor claims that she has taken action in response to an (ongoing) armed attack. Rather, Turkey essentially rests her case on the need ‘to counter an imminent terrorist threat’. But her letter does not even begin to substantiate her claim that, at the material moment in time, a cross-border armed attack by Kurdish forces was imminent.   

It is worth emphasizing that Syria and the international community have not been insensitive to Turkey’s security concerns. This is evident from the 1998 Adana Agreement. But Turkey’s reference to this agreement in her letter to the United Nations is simply misleading. Annex 4 of this agreement, whatever its correct interpretation otherwise is, confines any conceivable necessary Turkish ‘security measures’ to an area ‘5 km deep into Syrian territory’. Operation ‘Peace Spring’ not only goes far beyond, but seems even be driven by the aim of effectuating a population exchange.

There is the very serious possibility that Operation ‘Peace Spring’ could constitute a manifest violation of the prohibition of the use of force. There is reason to believe that the Turkish President, by giving and maintaining the order for ‘Peace Spring’, could have incurred and could continue incurring individual criminal responsibility for a crime of aggression, as defined in Article 8bis of the Statute of the International Criminal Court. Pursuant to Article 15ter of the Statute, the Court could open a preliminary investigation if the Security Council decided to refer the situation to the Court in accordance with Art. 13(b) of the Statute.

Serious questions must, however, also be asked of NATO and its Member States. Turkey is part of NATO and she has not begun Operation ‘Peace Spring’ out of the blue. Quite to the contrary, for several long days Turkey kept publicly announcing that her use of force would soon begin. It is commendable that many States, including NATO members, warned Turkey not to conduct the announced operation. But international law was absent from those public warnings. To the best of my knowledge, Turkey’s NATO partners did not ask her to explain to the international community in a verifiable manner how the massive use of force she was announcing could be justified in view of the prohibition of the use of force under international law. Even when Operation ‘Peace Spring’ had begun, NATO partners left it to Syria’s President to invoke international law – to the same Syrian President who has been under suspicion for years of having incurred individual criminal responsibility for the commission of crimes under international law against civilian populations in Syria. Last week, the only “Western” States that referred to international law, were Cyprus, Greece, Liechtenstein, and Switzerland. It is to be considered a collective failure to prevent that most NATO Member States refrained from publicly referring to the prohibition of the use of force before Operation ‘Peace Spring’ began.

Most recently, the Turkish President has shamelessly threatened the European States that he would open the gateway for refugees in their direction should those States criticize Operation ‘Peace Spring’ in legal terms. I do not ignore that this creates a difficult dilemma for decision-makers. But let us not forget that the introduction of the prohibition of the use of force in the UN Charter constituted a historic achievement. The International Court of Justice has rightly characterized this prohibition as a cornerstone of the current international legal order. To remain silent in a case where this prohibition appears to be challenged to its core, means risking that this cornerstone begins to falter.

 

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5 Responses

  1. Lokman B. Çetinkaya

    Dear Professor Kreß,

    Thank you for putting a spotlight on this issue from the legal point of view.

    I agree with your criticism over the absence of the crucial legal term ‘armed attack’ in Turkey’s letter to the UN. However, although it is not well formulated in Turkey’s letter, what Turkey argues for is the right of self-defence against permanent and active threat of further armed attacks by the PKK and its affiliates from the Syrian territory in addition to those attacks have already been materialized. I have already discussed it in a post published here after Turkey’s Operation Olive Branch (see https://www.ejiltalk.org/turkeys-military-operations-in-syria/).

    Professor, you mentioned ‘the use of force is being directed against precisely those Kurdish forces that had helped keeping the “Islamic State” at bay’. What you mean by ‘Kurdish forces’? Is it the PKK and its affiliates which have been militarily equipped by NATO ‘allies’? As far as I understood, you see no illegality in arming one terrorist group, the PKK/YPG/SDF (whatever brand you like), to fight another (Daesh/ISIS/ISIL).

    If someone hesitates about whether ‘those Kurdish forces’ mentioned in the post are terrorists, US Army General Thomas’s words may be sufficient to clarify it: ‘They formally called themselves the YPG, who the Turks would say equated to the PKK. So we literally played back to them that you’ve got to change your brand. What do you want to call yourself besides the YPG? With about a day’s notice they declared that they were the Syrian Democratic Forces.’ In addition, former US Secretary of Defence Carter and Senator Graham both agreed that the YPG is equal to the PKK and the PKK is considered a terrorist organisation not only by Turkey, but also by the US. It is worth remembering that States including but not limited to members of the EU, Australia, Canada, the UK, and the US, as well as international organizations such as NATO and the EU, see the PKK as a terrorist organization.

    Professor, had you had a terrorist organization just on the other side of the border that is equipped by your ‘allies’ and represents a permanent and active threat of armed attacks to your country, both in terms of capacity and intent, what would have been your legal advice to your State?

    It is worth emphasizing that Turkey hosts over 300.000 Syrian Kurds who fled either from the Assad regime or terrorist threats, including by the PKK and its affiliates. It has been made clear by the Turkish side that Operation Peace Spring is launched not against the Kurds in the region, but against terrorist organizations.

    Professor, you also criticized Turkish President for ‘shamelessly threatening’ the European States to open the gateway for refugees in their direction. I am wondering what would be your advice to him? Should Turkey keep taking care of ever growing number of Syrian refugees (currently over 3.6 million) in its territory with the help of limited EU funds for decades? Officials say at least 350,000 Syrians have voluntarily returned to areas in northern Syria following Turkey’s two previous operations – Operation Euphrates Shield and Operation Olive Branch. With Operation Peace Spring, Turkey plans to resettle 2 million Syrians in a 19-mile (30-km) wide safe zone to be set up in Syria. Turkish officials say Turkey launched Operation Peace Spring to provide border security by eliminating terror elements and to ensure the safe return of Syrian refugees and Syria’s territorial integrity.

  2. Elizabeth Chadwick

    Thank you for this enlightening discussion.
    The phrase “Even less is it apparent how Turkey’s massive use of force could be necessary to counter such ‘harassment fire’” reminds me of the original ‘Caroline’ incident in the 19th century, in that the element of necessity gave rise to the quite limited doctrine of self-defence. Even so, the response needed to be proportionate.

  3. John R Morss

    1. I protest the publication of the previous blatantly partisan comment.
    2. (Less important) please don’t use “her” for Turkey: nor “him”: Turkey (like Syria and Australia) is an “it.”

  4. Nicolas Boeglin

    Dear professor Kreß

    Many thanks for this very interesting article.

    It reminds me a collective plea that some of us signed against the abusive invocation of self-defense as a response to terrorism.

    See plea (full text) in differente languages at: http://cdi.ulb.ac.be/contre-invocation-abusive-de-legitime-defense-faire-face-defi-terrorisme/

    See list of signatures at: http://cdi.ulb.ac.be/wp-content/uploads/2016/06/Liste-prof-et-assistants-8-July.pdf

    A real problem now for some Permanent Members of UN Security Council is that Turkey is now arguing the same kind of arguments listened by their delegates a few years ago to justify military actions in Syria without the consent of Syria´s authorities.

    Sincerely yours

    Nicolas Boeglin

  5. Dear Professor Kreß,
    thank you for this article.
    I observe that the commentator criticizing your article cannot help mixing in the discussion of Turkey’s military aggression, Turkey’s declared intent to “resettle” (sic) 2 million Syrians in the so-called “safe zone” it now attempts to create.
    I find this part very interesting under a legal and socio-political perspective.
    Although I am just a human rights lawyer (not a professor, not a Dr.), I would like to comment on that. In my perception, besides the atrocities committed by Turkey during the past days, as these are surfacing the news, Turkey attempts, with the silent complicity of States that have a fairly good record in human rights, the largest refoulement of modern times. Therefore, an incredibly massive violation of international law.

    “Resettlement” and “return” of refugees (=persons who have been recognized as entitled to international protection) are not the same “solution” for them. What Turkey proposed (and tempted populism, xenophobia and islamophobia of the West with) seems to be a… coincidence of these 2 options, in the context of a distorted idea of “humanitarian protection”, which would be achieved via the massive repatriation of refugees to (a part of) the country they fled from and the parallel provision of humanitarian assistance to them. Not abroad. In their homeland. This could only be possible if a country (other than the country of origin) remains “responsible” for the refugee, in the new location.
    This notion is closely associated with and a result of the “responsibility to protect”. There is a close association of protection with the fundamental idea of responsibility. For a responsibility of the State (to protect or other) to be strong, the notion of sovereignty must be present too. The more sovereign the State is in some specific space (an embassy, a ship, a part of a State), the strongest the responsibility to protect is.
    A discussion on extraterritoriality and the responsibility to protect is also highly relevant in the discussion of what will happen in North Syria after the “Turkish unilateral military operation”, which is but a hedious racist crime that should stay in history as such, besides the current attempts to censor and silence other States.
    It has been argued that when a person enters the extraterritorial jurisdiction of a State, the latter has, to some degree, a responsibility to protect.
    Even abroad, “responsibility” may get intense regarding some actions, even though there is not any territorial link but a rather administrative, a purely jurisdictional one.

    An expansion in Turkey’s territory of control is supposedly fueled by humanitarian criteria and has cleverly exploited western xenophobia and islamophobia -to the maximum.

    “Turkey’s paradigm” seems to be:
    You recognize and integrate the refugee, and then you invade the neigbouring country he fled from and place him back there, under your protection. He remains a refugee under your or your ally’s protection (so you call this “resettlement”) while at the same time he is placed back to where he came from (so you at the same time can call this “return” – voluntary or not). Scholars and iNGOs like AI have documented in the recent past Turkey’s practices in presenting refoulement as if it was a voluntary return.
    Now Erdogan seems to be expanding Turkey’s jurisdiction to a territory of 30 km deep running through all the border with Syria. The “quality” of Turkey’s presence there will have similarities with its presence in its embassy abroad.
    Only (tiny detail) the “host State” has not agreed to this.

    Was this complicated turn of events a surprise? I don’t think so.

    -in March 2016, with the harshly criticized Joint EU-Turkey Statement, all EU member States agreed to “any joint endeavour” with Turkey towards the creation of a “safe zone” INSIDE Syria (agreement #9). [Some of us interested in refugee law back then warned that what EU Governments were agreeing to, was actually an invasion in Syria. A prospect that could be considered highly undesirable and very dangerous for Europe’s peoples.]
    -In September 2019 Erdogan made a speech about this plan of his in the UN General Assembly. There was no robust reaction to that, a fact which can be considered as the green light from the international community to proceed with these plans.
    -In early October 2019, the US went along with this plan and facilitated it by withdrawing its troops. Washington Post publicized an article about how the whole world should support this plan.

    Upon the “humanitarian military invasion”, EU Governments, the EU, and the US pretend to be surprised and to condemn the unilateral military operation, pre announcing minimal “sanctions” (i.e. the EU discusses “not selling arms and weapons” to Turkey). NATO decides not to make any declaration decrying the atrocities.

    Erdogan actually tells EU Governments: “But, you have agreed to this, in order for me to keep the responsibility for these refugees”. This is where the “threat to open the gates” comes from.

    In this light, EU m/States will not only just let Turkey expand its jurisdiction, proceed with Kurds’ ethnic cleansing, also leading to the release of innumerable perpetrators of war crimes and crimes against humanity.

    They latently support it.

    They will most probably subsequently fund the functioning of the so-called “safe zone”, under Turkey’s (or its allies’) “protection”, succumbing to the threat of having to host Syrian refugees if they dare to “move or say” otherwise.

    It thus seems it is our own xenophobia and islamophobia, our own distance from EU’s values that functions like handcuffs for EU member States.

    I hope I have not overburdened this space with my thoughts and concerns.

    Warm regards,

    Electra Leda Koutra