Turkey’s Military Operation in Syria: A Freedom of Expression Perspective

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There is no doubt that Turkey’s use of force in Syria and the unfolding consequences thereof should generate much legal debate and analysis. The legal issues are broad. They cover primary norms under international law on the use of force, international humanitarian law, international human rights law and international refugee law. In addition, the relationship between the Turkish Armed Forces and Free Syria Army (or Syria National Army as recently renamed in Turkey) engages questions of attribution alongside individual criminal responsibility under international law. Alongside this long list of issues of engaging the state responsibility of Turkey, we can certainly ask whether any third-state responsibility is engaged and whether other states have been facilitating acts, which would have been unlawful if they carried them out themselves.

Some of these issues have been addressed on EJIL Talk!  here and here, and, elsewhere, here and here. Some have generated responses and counter claims here and here. My aim here is to highlight one, as yet, unaddressed aspect — freedom of expression and, academic freedom as a lex specialis of freedom of expression.

Discussions about Turkey’s military actions on international law blogs thus far have not been written by Turkish international lawyers, with one exception: a reply to a post on EJIL Talk! defending Turkey’s justifications for the lawfulness of the use of force under ius ad bellum.  My hunt for academic seminars held on these issues at any university in Turkey has drawn only blanks. Not one single academic seminar, not one single debate has been held to discuss multilayered legal issues around a major military operation. This is curious. Why do Turkish international lawyers not partake in the opportunity to debate and discuss international law in real time, and use their linguistic advantage to access key sources?

The answer to this question lies not in the lack of interest and concern amongst my colleagues (or myself) in the international legal dimensions of the military operation but, I suspect, in the collective practice of self-censorship amongst Turkish academic international lawyers. They may have a point. A day after the start of the operation on 10 October 2019, public prosecutors in Turkey’s three major cities, Ankara, Istanbul and Izmir, covering not only a jurisdiction of nearly thirty million people, but also the country’s major centres of academia, issued some crucial clues. The Istanbul prosecutors’ office said that ‘any news, publications or tweets that seek to undermine Turkey’s social, internal peace and national security will be subject investigations under Turkish criminal law, counter terrorism law and other relevant laws.’ Ankara prosecutors’ office underlined that it shall not require a complaint by a third party to initiate such investigations. Izmir’s prosecutor was even clearer: ‘Turkey has started the Peace Spring Operation in order to destroy the corridor of terror on our southern border and to bring peace to that region. All views disseminated via print, online publication or social media accounts that are against our security forces within the context of incitement to hatred or propaganda of a terrorist organization are currently under investigation.’

One thing we do know about the recent judicial practices in Turkey is the unforeseeable character of the use of the criminal law provisions and, in particular, counter terrorism laws. Fighting terrorism is the strongest rationale put forward by the government domestically as a justification of this operation. Querying this, even by way of international legal analysis, may well trigger investigations by prosecutors and trials by courts. Academics in Turkey know this best. A group known as Academics for Peace has faced criminal prosecutions en masse solely based on signing a petition in January 2016.  Some were permanently removed from their academic posts under state of emergency decrees. These included international lawyers. Some of them spent time in prison for signing this petition. It has taken three years for the Turkish Constitutional Court to recognize that signing a petition by academics fall within the scope of freedom of expression, allowing a gradual process of acquittal of academics by lower courts. The chilling effect of the statements by the prosecutors’ of the three metropolis cities of Turkey therefore are very real for Turkish academics.

You are thus not likely to read international legal assessments from Turkish international lawyers on the unfolding events anytime soon, save for those in agreement with the government. This is not only a major loss for academic freedom and international law scholarship in Turkey, but also for international legal debate outlets such as EJIL Talk!

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Eugene Kontorovich says

October 28, 2019

Prof. Cali,
A fascinating comment, which answers half a question I had.

But here is the other half: not only are Turkish legal academics not visibly criticising the lawfulness of the current operation, there do not seem to be any presenting a legal justification, in whole or part. That is surprising in too, given the intellectual climate you have described. Even when the U.S. engages in in uses of force almost uniformly regarded as unlawful by scholars abroad, there are typically numerous American academics who can explain and defend America's position.

Even apart from the current operation, I have found no Turkish academic writing on the refugee resettlement policy, which predates the current campaign, and which seems not an obviously black-and-white legal issue. Perhaps I am missing some sources?

Selman says

October 28, 2019

Prof Kontorovich,

I think the legal argumentation and justification of issues concerning Turkey's international relations intentionally left for diplomacy by Turkish academics. This has been a long tradition of the Turkish lawyers and almost a consistent practice of the Turkish lawyers arguing both sides. That is I believe one of the factors why Turkish lawyers abstain from writing about the operation and any other related issues.

As a second note, it can be seen how hard it is to 'defend' Turkey's position in an extremely intolerant environment (see the following comment to the comment referred by Prof Çalı's as 'one exception' to the silence of Turkish lawyers. If Dr. Morss would be the editor of this blog we would not see even that 'exception comment'. I believe anyone who might attempt to comment on any side of the operation would face similar react either in the domestic sphere and the international sphere. Prof. Çalı's position is mostly true but missing, these findings are, to some extent, also valid at the international level.