The Legality of Turkey’s Possible Self-Defence Action against ISIS: A Response to Ashley Deeks

Sina Etezazian is a PhD Candidate at Monash Law School.

In a recent blog post at Lawfare, Professor Ashley Deeks analyses the manner in which Turkey may lawfully protect the Turks taken hostage by the jihadist group ISIS (the Islamic State in Iraq and Syria).  She contends that ‘if the Maliki government loses total control of the country, Turkey almost certainly would be legally justified in using force in Iraq to rescue its nationals’ in accordance with Article 51 of the UN Charter.  She also takes the view that the forcible protection of citizens abroad may be equated with permissible self-defence when:

(1) the nationals in question face imminent threat of (or have suffered actual) injury;

(2) the host state is unwilling or unable to protect or rescue them; and

(3) the action of the intervening state clearly is limited to the goal of rescuing its nationals – that is, it is not engaging in pretextual intervention.

However, Deeks is on shaky legal ground concerning the ‘unwilling or unable’ and ‘last resort’ requirements. I do not aim here to consider the legal status of the protection of nationals abroad; I have discussed it elsewhere  (and it has also been addressed in length on this and other blogs and forums since the Russian intervention in Crimea). Instead, I want to explore a distinction that can be drawn between forcible responses to territorial and non-territorial attacks with respect to the ‘unwilling or unable’ and ‘last resort’ tests, clarifying why – contrary to what Deeks asserts – Turkey might not be allowed to undertake unilateral forcible measures to protect its nationals in Iraq on the basis of the right of self-defence.

The ‘Unwilling or Unable’ Test and a Distinction between Responses to Territorial and Extraterritorial Attacks

The point that Deeks makes regarding the ‘unwilling or unable’ test can hardly be said to reflect existing law, as it is founded on the claim that ‘unwilling or unable’ extends to the protection of nationals abroad, which is itself a very controversial issue in modern jus ad bellum. Let us suppose for the sake of argument that ‘unwilling or unable’ qualifies as a new norm of customary international law that allows for the exercise of the right of self-defence against non-state actors when the host state is unwilling or unable to prevent its territory being used as a base for launching attacks against the victim state’s soil. Even allowing that position, it is extremely unlikely that its scope has been so widened as to include the military rescue of nationals threatened extraterritorially.

It is true that the ‘unwilling or unable’ test has attracted some level of support from the international community since 9/11, especially when the attack has been directed against the territory of the victim state (as was apparent from states’ reaction to the September 11 attacks). Nonetheless, the most recent trend in state practice clearly demonstrates that the argument for ‘unwilling or unable’ would be uncertain at best in scenarios where Article 51 has been invoked to rescue nationals allegedly at risk outside their territory. Russia, for example, soon after it intervened militarily in Ukraine, chose to shift away from the forcible protection of nationals abroad towards ‘intervention by invitation’ as the main legal justification for its action. Similarly, in February when five Iranian soldiers were abducted by the militant organisation Jaish-ul Adl and taken across the border to Pakistan, Iran sought to rely on peaceful measures, not self-defence action, to secure their freedom. This was despite the fact that one of the Iranian officials had been quoted as warning that ‘if Pakistan doesn’t take the needed steps to fight against the terrorist groups we will send our forces into Pakistani soil.’ Importantly, even when Jaish-ul Adl announced that it had executed one of the soldiers, rather than respond with force in self-defence, Iran wrote a letter to the UN Secretary General, urging ‘the global community’ to cooperate with the Iranian government on the release of its nationals and to tackle the threat posed by extremists in the Middle East.

Returning to the current crisis, Turkey has ‘agreed to try diplomatic methods to bring about the hostages’ release.’ Thus, in spite of the fact that Turkish ministers ‘are said to be assessing military options too’, Turkey has not claimed defensive force to regain custody of its citizens. It is therefore beyond doubt that the ‘unwilling or unable’ test has weak legal standing in cases where the attack has been extra-territorial, including where it has been directed against citizens overseas (assuming that the attack or its imminent threat against nationals abroad meets the definition of armed attack for the purpose of lawful self-defence).

The ‘Last Resort’ Requirement and a Distinction between Responses to Territorial and Extraterritorial Attacks

Moreover, by suggesting that, should the Iraqi government lose ‘total control of the country’, force can be used in self-defence against ISIS to protect the kidnapped Turks there, Deeks would seem to adopt a very broad approach to ‘last resort’ as a requirement inherent in the necessity of defence. The ‘last resort’ requirement means that the claimant state may use force within the meaning of Article 51 only if non-forcible measures are unlikely to be practicable to bring the conflict to the end. This view can be inferred from customary international law governing self-defence and the view of a number of highly respected commentators published by The Chatham House Principles of International Law on the Use of Force in Self-Defence (page7), along with the jurisprudence of the International Court of Justice (ICJ) and the relevant contribution (paragraph 120) made by the International Law Commission (ILC).

In fact, the total loss of control may not be taken as evidence that options other than force have become impracticable to resolve the tension in question. Going back to the Iranian border guards taken hostage in Pakistan, for example, it was some Sunni clerics inside Iran, not the Pakistani government, who played a major role in convincing Jaish-ul Adl to release the soldiers. In other words, mediation as a non-coercive means of dispute resolution could practicably settle the given situation, no matter how effective the Pakistani government had been in terms of control of its country during the crisis. Likewise, the extent of control the Maliki government exerts over Iraq appears unlikely to be a particularly relevant factor in determining whether the ‘last resort’ criterion of necessity has been met.

Another important issue to take into account with regard to ‘last resort’ is a distinction that can be drawn between responses to territorial and non-territorial attacks – although such a distinction has yet to acquire the status of customary international law (James A Green, The International Court of Justice and Self-Defence in International Law, pages 76-86). Since the establishment of the UN, when faced with extra-territorial attacks, states have been more willing to pursue options entailing negotiations prior to the use of force. Examples include the measures taken by the United States before acting forcibly against Cambodia in 1975 (the Mayaguez crisis) and the perceived terrorists targets in Afghanistan and Sudan in 1998. On the contrary, when the attack to which the victim state is responding has occurred against its territory, the victim state is much more inclined to resort to self-defence immediately, as demonstrated by the Seychelles’ prompt self-defence action in response to the terrorist attack that was undertaken against its territory in 1981.

The position that one can take concerning the distinction between territorial and extraterritorial attacks was somewhat reinforced in April 2010 when Leiden Policy Recommendations on Counter-Terrorism and International Law (paragraph 39) concluded that ‘[I]n the case of an attack by terrorists that is not attributable to a state, Article 51 should be read to require that the attack be large-scale in order to trigger the right of self defence’. The Leiden Recommendations reflect the work of government legal advisers as well as international law scholars and legal practitioners from a number of states. As the Recommendations made clear, ‘in assessing the scale (of such attack), account may be taken of a series of attacks emanating from the same territory and the same terrorist group’. No doubt an attack on the nationals abroad (or its imminent threat), as might occur to the kidnapped Turks in Iraq, does not meet the criteria set out by Leiden Recommendations, and therefore may not constitute the threshold of an armed attack that would give rise to the right of self-defence.

Conclusion

The question of whether the ‘unwilling or unable’ test has crystallised as a rule of custom is one thing. The controversy as to whether the test in question has anything to do with the use of force against non-state actors to defend citizens threatened overseas is quite another. Certainly, in the wake of 9/11, the international community has increasingly accepted the idea of a victim state engaging in self-defensive measures against non-state actors in another state’s territory when that state has proved unable or unwilling to prevent the non-state actors from attacking the victim state’s territory. However, the radical expansion of the ‘unwilling or unable’ test, as proposed by Deeks with regard to the protection of nationals abroad, appears to have no foundation in state practice and opinio juris relating to defensive action. The same can be said of Deeks’ conception of the ‘last resort’ requirement. Even if Maliki’s administration at some point becomes totally unable to assume control of Iraq, Turkey would not be entitled under current international law to resort to self-defence with the aim of protecting its nationals taken into custody there. Leaving aside the matter of legality, furthermore, in cases of citizens under threat outside their territory, diplomacy seems to have been a more effective and reliable path than the resort to force.