Was the Downing of the Russian Jet by Turkey Illegal?

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There has been much talk of improvement of the relationship between Russia and the West following the deadly terrorist attacks in Paris two weeks ago. Whatever gains have been made on that front will risk being reversed following Tuesday’s incident involving the Russian and Turkish air forces. Although the exact facts are—and likely will remain—disputed, the essence of the incident is known: a Russian fighter jet was shot down in the morning of 24 November by the Turkish military near the Turkish-Syrian border. This post weighs the international law considerations raised by the incident and suggests that on the basis of the available facts, the question from the title should likely be answered in affirmative.

The Russian SU-24 jet was in the region as part of the recent military offensive conducted by the Russian forces with the consent of the government of Syria against a number of armed groups on the Syrian territory, including the notorious Islamic State. The central contested fact is, of course, whether the aircraft had crossed over the border into the Turkish airspace. The Turkish prime minister Ahmet Davutoğlu emphatically claimed that it had; the Russian president Vladimir Putin denied it in equally strong words. An unnamed US official was reported as having said ‘that the Russian incursion into Turkish airspace lasted a matter of seconds’. Later, a Turkish letter addressed to the President of the Security Council (and duly leaked online) stated the incursion had lasted for exactly 17 seconds.

The legal analysis under international law is reasonably clear if the Russian version of the events is taken as factually accurate. The shooting down of another State’s military aircraft amounts to a use of force against that State. The recognized exceptions of the use of force in self-defence and under the authorization of the Security Council being inapplicable on the facts, the destruction of the jet would be caught by the general prohibition on the use of force under Article 2(4) of the UN Charter and thus unlawful.

What if, however, Turkey was right and the Russian jet had indeed crossed the border into the Turkish airspace? There is little doubt that, as the ICJ held in the Nicaragua case, the ‘unauthorized overflight of a state’s territory by aircraft belonging to or under the control of the government of another state’ directly infringes the territorial sovereignty of the overflown State (at para 251). This general observation should be tempered by noting that if such an incursion had been caused by bad weather conditions or navigational error, its wrongfulness could have been precluded on the grounds of distress or force majeure (see ILC Draft Articles on State Responsibility, commentary to Article 23, para 5, fn 351). Nevertheless, no such claims appear to have been made thus far. Therefore, even accepting that the unauthorized overflight amounted to a breach of international law, does it follow that Turkey as the overflown State was entitled to respond by destroying the infringing aircraft?

As an aside, for civil airplanes, the answer is almost always negative. The applicable lex lata is to be found in Article 3 bis of the Chicago Convention on International Civil Aviation, adopted in response to the shooting down of the Korean Air Lines Flight 007 over the territory of the Soviet Union in 1983. The provision stipulates that States must refrain from using weapons against civil aircraft in flight and it prohibits the endangering of the lives of passengers in case of interception. This means that shooting down a civilian aircraft, even if directly following an unauthorised incursion into the acting State’s airspace, would constitute a violation of the applicable law (for a more detailed analysis, see this excellent post by Kimberley Trapp from 2011).

However, the Russian jet was decidedly not a civilian aircraft. As such, the response to its (supposedly) unauthorized overflight falls to be determined by the application of the general rules of international law. One could question whether the act of shooting down a foreign plane over one’s own territory amounts to a use of force in the sense of Article 2(4) of the UN Charter. It is open to doubt whether such an act can be accurately described as being ‘against the territorial integrity or political independence’ of the intruding State or as ‘inconsistent with the Purposes of the United Nations’. The practice of States in this area is mixed: in his book Law Against War, Oliver Corten details several instances of aerial incursions when the defensive action was treated as ‘a simple police measure’ and Article 2(4) was not invoked by either of the involved States (at pp. 63-65).

Whether responding to aerial incursions is governed by the regulations on the use of force or (as Corten argues) by the lex specialis rules on policing one’s airspace, it is clear that international law does apply to such incidents. Although the two potentially applicable regimes admittedly differ in their nuances, under both of them, any defensive action against the intruding aircraft must meet the twin requirements of necessity and proportionality.

It is generally accepted that the overflown State may respond by force when the overflight is conducted for apparently hostile reasons. For example, when the Soviet Union shot down an American U2 airplane flying over the Soviet territory on a reconnaissance mission in 1960 in the context of the Cold War, the US did not issue a protest against the attack nor against the ultimate imprisonment of the pilot. It can be inferred from incidents such as that one that shooting down a military airplane on a hostile mission over the targeted State’s territory may be justified under international law (and some of the period literature did indeed infer as much: see at p. 287).

However, the same would not apply where no such hostile intent is readily apparent or capable of being reasonably inferred from the context of the incursion. As Tom Ruys puts it, ‘intruding aircraft whose intentions are known to be harmless must not be attacked even if they disobey orders to land’ (at p. 191). The exact intentions of the Russian pilots may still be subject to speculation, but the context of their supposed overflight—in other words, the ongoing Russian military operations in Syria—indicates that any incursion would not have posed a direct threat to Turkey. Another potential indicator of a hostile intent is the accumulated or repeated nature of the incursions. This is one of the factual questions that still needs to be determined, but according to press reports, Turkey did complain in the past that Russian planes engaged in the Syrian conflict had been repeatedly straying across the border.

In any event, the brevity of the incident (likely measured in seconds only) coupled with the limited evidence of any direct threat vis-à-vis the territorial State suggest that the injury suffered by Turkey was relatively minor. The incursion would have amounted to a violation of the territorial sovereignty of the overflown State as per the Nicaragua case (see above) but in the absence of any coercive element, it would not have violated the principle of non-intervention (see ibid, at para 205).

It thus appears that the destruction of the intruding Russian jet would have exceeded the bounds of proportionality as less severe means had been available to Turkey. In particular, these would have included the issuance of warning (which Turkey claims it had done, but Russia disputes) and the interception of the intruding aircraft with the aim of expeditiously removing it from the airspace of the territorial State. As the Russian jet seems to have been shot down following a very brief incursion into Turkish airspace and as there were other less severe means available, its downing appears to have breached international law.

Undoubtedly, more facts will emerge in the coming days, some of which may affect the conclusion reached above. For now, we should hope together with Donald Tusk, the president of the European Council, that all involved will ‘remain cool headed and calm’ and that Tuesday’s events will not lead to further escalation in the region and worldwide. However the events shall unfold, the conservative interpretation of international law advanced in this post should be seen as one of the important ways in which international law serves to prevent unnecessary confrontations of this kind in the future.

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Barry Glaspell says

November 26, 2015

I am with you so far. But once the pilot ejects, as in this case, and reaches ground I don't think you will find support in international law, Turkish law, the rule of law, or any law at all, to murder him.


November 27, 2015

I think Kubo Mačák comment's terms need to be changed, i.e. the result should be "disproportional" instead of "illegal". We have to remember that Russian practice of airspace violations has a long list.

L. Couperus says

November 27, 2015

Few Questions:

1) What if Turkey didn't know the nationality of the jet? As you remember, Syria shot down a Turkish F-4 in 2012, and Turkey shot down a Syrian jet in 2014. Both resulted from the incursion into the other's airspace. Can Turkey regard an unknown jet as an imminent threat because it is possibly a Syrian jet?

2) What about the rules of engagement of Turkey? Following the tension with Syria, Turkey did broaden the rules' scope including that she is entitled to shoot any if a violation of sovereignty from Syrian territory exists. Is there any bindingness of these rules in international law?


Ivailo Dimitrov says

November 27, 2015

Mr. Akilioglu, in terms of International law and jus ad bellum disproportional means indees illegal. Further, in assessing the lafwulnes vel non of scertain act the previous history of the suffering state is not a criteria. Let we discuss the issues at hand in the light of the legal viewpoint disregardarding our own nationality. :)

Ralph says

November 27, 2015

excellent article; on a side note, did you @EJIL:Talk change the print options? I tried to save it as a PDF but the result was not as good as it was in the past.
and, @Tekin: disproportional = illegal

David Goddard says

November 27, 2015

Dear Kubo,

Interesting post, thank you. Another aspect of this incident is the question whether Turkey's conduct was compatible with Article 2 ECHR. On Turkey's account its conduct took place within its own territory - so an objection on the grounds of non-extraterritorial applicability should not be an issue. In any case, these days the court could well find the Convention to apply even if the action had taken place entirely in Syria.

In terms of breach, even if it could be argued that the Turkish action wasn't the immediate cause of death of the pilot, Turkey could still quite plausibly be in breach on the basis that it exposed the aircrew to the threat of violation of the right to life. Turkey would then, I think, have three options: argue that it's action fell within Art.2(2)(a) as being no more than necessary in defence of any person from unlawful violence; argue the applicability of lex specialis (i.e. IHL, on the basis that its action constituted a very brief armed conflict); or argue some specific subsequent state practice on point (a la Hassan). Clearly, none of these looks particularly attractive!

Elizabeth says

November 27, 2015

Mr. Akillioglu's distinction is indeed appropriate to make. 'Proportionality in abstracto' is simply that, and can contribute little, given particular circumstances such as a steady pattern of prior provocations, and subsequently altered (and publicised) ROE.

Heiko says

November 27, 2015

Whereever it was for some seconds, wasnt it shot down over Syria when the attack was allready over? How many seconds does a rocket need?

Jordan says

November 27, 2015

Kubo: thank you for starting this discussion. There will be a few law journal articles in the works.
I think that Tekin and Elizabeth have made good points concerning part of the context involved -- prior Russian incursions, and then don't forget the prior Turkish complaints. Heiko makes another good point, as you do, the matter took place within seconds and the Russian jet might well have been leaving or had left Turkish territory.
Some additional considerations:
(1) the Russian jet was the equivalent of Russian territory, as would be a Russian naval vessel. Article 2(4) is, therefore, not irrelevant.
(2) most claims regarding the downing of aircraft penetrating territory of the state using force have involved claims under UN Article 51 self-defense, especially with respect to civilian aircraft of other types of aircraft that have been warned away but keep penetrating into airspace over the territorial sea or land of the state claiming self-defense. If the civilian aircraft has been warned away but keeps coming, who knows? there might be a bomb on board, it might be al Qaeda again.
There were condemnations by ICAO of Russia in downing the KAL 007 aircraft AFTER it had flow over Russian territory and was leaving or had left airspace over Russia and/or its territorial sea. There was a similar condemnation of the Israeli downing of an airliner that had flown into airspace over Israeli occupied territory but had turned around upon being warned and was leaving -- thereby posing no threat of an imminent armed attack or an attack that was occurring.
In this instance, was the Russian aircraft leaving? had it left? could it easily return? was it known to be Russian? had it been warned by Turkish authorities (one of the major disputes regarding the facts)?

Jordan says

November 27, 2015

p.s. If NATO authorizes use of force against noncompliant Russian aircraft in the future (perhaps not likely given the need for unanimity among NATO members), UN Article 52 "regional action" (as opposed to UN S.C. "enforcement action" under Articles 39, 42, and 53) might come into play.
Too many writers imagine that Article 52 of the UN Charter does not exist, that "regional action" approved by the OAS during the Cuban Missile Crisis was impermissible under the UN Charter, that NATO's authorization of "regional action" in Kosovo was illegal despite the permissibility of "regional action" under UN Article 52 when the S.C. is veto-deadlocked and cannot intervene under Article 53.

olivier corten says

November 29, 2015

But art 52 only refers to measures, "consistent with the Purposes and Principles of the United Nations" (and this obviously includes the prohibition on the use of force). It does not authorize regional agencies to launch a military action without the authorization of the SC, but only operations based on the agreement of the States concerned. This is why NATO -or NATO States— never invoked such a curious legal basis when they attacked Yugoslavia en 1999… Anyway, this military intervention was condemned by a large number of States, as was the US action during the Cuban Missile Crisis.

Liron A. Libman says

November 30, 2015

Thank you, Kubu, for a well written analysis.
Interesting to note that yesterday, Israeli Defence minister revealed details of a similar incident involving a Russian fighter jet crossing the southern Syrian border into Israel, and not fired at (see: http://www.timesofisrael.com/yaalon-russian-jet-breached-israeli-airspace-not-shot-down/).
Generally, Israel is very sensitive about breaches of its airspace, due to its small and densely populated territory, accompanied by common and imminent terrorist threats. So at first glance, it seems that this incident support your conclusion that Turkish response was probably disproportional.
However, as you carefully stated, the exact facts are not clear and they are crucial. I would point at the fact that according to the Turkish statement, the plane was unidentified, rather than identified as Russian. If so, the possibility of a hostile intent could not be overruled. Especially, if, as the Turks claim, the plane ignored many calls on the emergency channel for 5 minutes. Another important factor, is whether any sensitive Turkish objects were nearby, so as to push for an immediate action.

Selman OGUT says

November 30, 2015

As we all know and just like Kubo wrote above, it was not the first time by Russian aircrafts to violate Turkish sovereignty. In the last incident, Turkish air-forces warned the Russian plane more than 5 times. According to principle of sovereign equality of the states, all the states are equal on international sphere. This requires to respect territorial sovereignty of a state. If a state does not prefer to do something about a violation of its borders (related to sea area, air space and land), it would be perceived as an acceptance of de facto impotence of the state in question. It is so inconsistent to discuss the legality or legitimacy of shooting down of an intruding plane, in spite of the violations of general principles of law in Syria due to Russian help. Disproportionality cannot be understood as illegal when we take a look from Blair doctrine, which distinguishes legal and legitimate. Therefore, it will be acceptable if somebody says that the shooting down was disproportional but legal. However, after several violations of Turkish borders, we see that Russia's main intention was to create an unstable and vulnurable border between Turkey and Turkmen region in Syria. It would be illogical and irrational to permit this kind of impotence for Turkey. By the way, proportionality requires a step by step motion. We can easily understand it by taking a look from UN Charter. If Turkey had not warned Russia for several times, we could say that this shooting down is disproportional. In addition to it, no one can guarantee that an intruding war plane is just hanging around and never bombs the cities on it.

Stephen says

November 30, 2015

@Selman: You argue that this was not the first time by Russian aircrafts to violate Turkish sovereignty and thus Turkey's actions can be justified. Then what do you have to say about the fact that Turkey violated Greek airspace more than 2,000 times(!) last year? Following your reasoning, as explained in your comment above, a potential downing of a Turkish jet by the Greek Air Force would be undoubtedly proportionate and, thus, legal.

Jordan says

November 30, 2015

Olivier: "regional action" can be consistent with the Purposes and Principles of the Charter, including those identified in the preamble and Articles 1 and 55(c) of the Charter. See http://ssrn.com/abstract=2272291 at pages 435-440.

olivier corten says

December 6, 2015

Jordan: of course, if it is conducted with the consent of the State concerned. But in the examples you mention in your article (the 1962 Cuba crisis and the 1999 intervention against Yugoslavia) that was not the case. This is why both actions were condemned by a significant number of States… Honestly, I don't understand how you could consider that those two precedents could have led to a new customary rule allowing regional organizations to intervene militarily without the authorization of the Security Council.