Difficulties in assessing the illegality of the Turkish intervention in Syria

Published: 26 January 2018 Author: Stefan Talmon

With the Syrian civil war entering its seventh year and the Islamic State terrorist organization being largely defeated in Syria, Turkish President Recep Tayyip Erdoğan announced on 13 January 2018 that in the coming days Turkey would start a military operation in Syria’s Afrin region against the “separatist terror organizations”, the Kurdish Democratic Union Party (PYD) and its military wing, the People’s Protection Units (YPG), in order to “purge terrorism from our southern borders.” The PYD/YPG controlled Afrin, which borders Turkey’s southern Hatay and Kilis provinces, since 2012 when, during the early phase of the Syrian civil war, Syrian government forces were compelled to withdraw from the region. President Erdoğan stated that the Kurdish YPG militia was trying to establish a “terror corridor” on Turkey’s southern border, linking Afrin with a large Kurdish‑controlled area to the east.

From August 2016 to March 2017 Turkey had conducted “Operation Euphrates Shield”, a military operation in northern Syria supporting Free Syrian Army (FSA) rebel groups to push Islamic State (IS) fighters away from its border and prevent the establishment of a continuous PYD/YPG‑controlled area along the Turkish‑Syrian border. Referring to this operation, President Erdoğan said:

“With the Euphrates Shield operation we cut the terror corridor right in the middle. We hit them one night suddenly. With the Idlib [Afrin] operation, we are collapsing the western wing. If the terrorists in Afrin don’t surrender, we will tear them down. We are destroying the western wing of this corridor with the Idlib operation.”

Referring to the United States’s military cooperation with the YPG in the fight against IS, President Erdoğan said:

“In Manbij, if promises [of US on the withdrawal of YPG] given to us are not fulfilled, we will take the situation into our own hands, they will see what we will do in a week. If the terrorists in Afrin do not surrender, we will tear their heads off.

This is not an alliance, you will give YPG weapons and talk about strategic partnership with us, nobody will swallow it. The US is engaged in self‑deception, believing that cooperation with terrorists will not harm their national interests. Anyone who took a snake to his bed will face the consequences.”

He called on Turkey’s allies to “behave in accordance with the spirit of our deep‑rooted relationship during this process.”

Turkey considered the PYD/YPG as the Syrian offshoot of the Kurdistan Workers’ Party (PKK) which had been fighting for an independent Kurdish State since the 1980s and which was listed as a terrorist organization by Turkey, the United States and the European Union. The United States, however, trained and equipped the YPG in Syria, seeing it as an effective force in the fight against the Islamic State. In early January 2018, it announced the creation of a 30,000-strong “Border Security Force”, made up largely of YPG forces, to defend Kurdish held areas in northern Syria. It was this plan that triggered President Erdoğan’s announcement of an imminent military operation against the PYD/YPG in Afrin.

On the day of President Erdoğan’s announcement, Turkey began shelling Kurdish militia positions in Afrin. Amid reports of an imminent Turkish military ground operation in Afrin a spokesperson of the Federal Foreign Office declared on 19 January 2018:

“Of course, we are closely monitoring the situation in northern Syria and have taken note of Turkey’s recent statements. We hope and expect that Turkey will continue to show political and military restraint. At the same time, it is clear that Turkey has legitimate security interests along its border with Syria which are of paramount importance to Turkey. These security interests should, of course, be taken into account in that context.”

On 20 January 2018, at 17:00 local time (14:00 GMT), Turkey launched “Operation Olive Branch” against the PYD/YPG in Syria’s Afrin region. In a letter to the United Nations Security Council, Turkey declared:

“The national security of Turkey has been under direct threat from the Syria‑based terrorist organizations, among which Daesh and the PKK/KCK Syria affiliate, PYD/YPG, are at the top of the list. […]

[…] the threat of terrorism from Syria targeting our borders has not ended. The recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria, which is under the control of the PKK/KCK/PYD/YPG terrorist organization, has resulted in the deaths of many civilians and soldiers and has left many more wounded.

The risk of Daesh elements infiltrating Turkey via this area and targeting the security of Turkey as well as the European countries is also heightened owing to the recent movements of Daesh terrorists coming into the Afrin region from other parts of Syria.

In order to counter this terrorist threat, Turkey initiated a military operation on 20 January 2018 against these terrorist elements. The operation is aimed at ensuring our border security, neutralizing terrorists in Afrin and saving the brotherly Syrians. Accordingly, the operation will target only terrorists and their hideouts, shelters, emplacements, weapons, vehicles and equipment. All precautions have been taken to avoid collateral damage.

This measure was essential in order to ensure the border security of Turkey and our national security based on our right of self‑defence, as defined in Article 51 of the Charter, but also within the context of the responsibility attributed to Member States in the fight against terrorism, including through Security Council resolutions 1373 (2001), 1624 (2005), 2170 (2014) and 2178 (2014).

I would like to underline that Turkey, which is unequivocally committed to the territorial integrity and political unity of Syria, is undertaking this measure with a view to contributing to and furthering these basic principles. […].”

Irrespective of the rhetoric about Turkey’s commitment “to the territorial integrity and political unity of Syria”, Turkey’s military operations against “Syria‑based terrorist organizations” in Afrin without the consent of the Syrian Government constituted a use of force against the territorial integrity and political independence of Syria and thus, in principle, a violation of the prohibition of the use of force in Article 2, paragraph 4, of the UN Charter. In the letter to the Security Council, Turkey put forward two legal justifications for its military operation in Syria: (1) the responsibility attributed to Member States in the fight against terrorism, and (2) the right of self-defence under Article 51 of the UN Charter. The first one can be disposed of quite quickly. Neither the fight against the “threat of terrorism” nor the Security Council resolutions referred to in Turkey’s letter provide a legal basis for the cross-border use of force. The right to self-defence constitutes one of the accepted exceptions from the prohibition of the use of force. It requires that “an armed attack occurs”. For the existence of an ongoing or imminent armed attack, Turkey bears the burden of proof. In its letter, Turkey alluded to this requirement by referring to a “recent increase in rocket attacks and harassment fire directed at Hatay and Kilis provinces of Turkey from the Afrin region of Syria”. However, no such rocket attacks on Turkish provinces were reported in the media prior to the launch of Operation Olive Branch. It might have been more than a coincidence that right with the launch of Operation Olive Branch on 20 January 2018 reports of “rocket attacks launched from the YPG‑controlled areas in Syria’s Afrin” appeared in the Turkish media. In light of these facts, it seems rather questionable whether the requirements of self-defence were fulfilled. In any case, any measures taken in self-defence must be proportionate. Even if there had been rocket attacks with limited casualties, the full-scale invasion of a foreign country with the ensuing consequences of civilian casualties and large scale displacement of civilians seems to be disproportionate and thus illegal under international law.

Syria strongly condemned “the flagrant Turkish aggression on the city of Afrin, which is an integral part of Syrian territory” and called upon the international community to take the necessary steps to stop the aggression immediately.

On 21 January 2018, the Turkish Prime Minister’s Office of Public Diplomacy identified the following objectives of “Operation Olive Branch”:

• “To ensure the Turkey‑supported Free Syrian Army (FSA) takes control of a 10,000‑square kilometre area.
• Following on from the Euphrates Shield Operation and the operation in Idlib, to completely prevent the outlawed Kurdistan Workers’ Party (PKK) from reaching the Eastern Mediterranean.
• To eliminate the possibility of losing Turkey’s geographical contact with the Arab world.
• To ensure the security of our borders with Syria.
• To prevent the infiltration of the Syrian Democratic Union Party (PYD) and the PKK into Turkey through the Amanos Mountains.
• To prevent a terrorist organization from opening to the Mediterranean and to the world from here.
• To ensure the security and continuation of the Euphrates Shield Operation area.
• To take control of the Tel Rifaat region and ensure the return of civilians to their homelands.
• To counter U.S. support for a terrorist organization.” 

The Prime Minister’s Office also explained why Afrin was important to Turkey, stating:

• “Afrin is critical in maintaining the security of Turkey’s border provinces and ensuring the security of the Euphrates Shield Operation area.
• The presence of terrorist organizations in Afrin means that the whole of the southern Turkish province of Kilis and most of the Hatay province are within range of terrorist organizations.
• Turkey sees the merging of the Kobane area with Afrin as the most important pillar of the ‘Kurdish corridor’ project.”

The objectives of Turkey’s military intervention in Syria thus went well beyond self-defence against terrorist attacks or the fight against terrorism more generally. The true geo-strategic objective behind the operation seemed to be to prevent the establishment and/or consolidation of a de facto independent Kurdish State in northern Syria creating a continuous Kurdish area from Iraq right up to the Mediterranean.

On 21 January 2018, Foreign Minister Sigmar Gabriel issued the following statement on the situation in northern Syria:

“We are concerned about the situation in northern Syria. The military confrontation between Turkey and Kurdish units brings incalculable risks. Both sides now fighting against each other undertook huge efforts in combating IS terrorism, making major sacrifices in the process. After the success of the fight against IS, Syria needs further steps towards stability and peace. The last thing it needs is further military confrontation. The people in Syria are already suffering enough. Everyone must focus at long last on trying to make progress at political level. There will be another opportunity to do so at the next round of Geneva talks in Vienna this coming week.”

At the regular government press conference on 22 January 2018, the spokesperson of the Federal Foreign Office was asked whether the Turkish attack was in accordance with public international law. The spokesperson refused to answer the question, stating instead:

“For its part, the Turkish Government, by an identical letter dated 20 January to the Presidency of the United Nations Security Council […] and the Secretary‑General of the United Nations […] explained the background and motivation of its action. In this letter, Turkey relies on Article 51 of the Charter of the United Nations. That is Turkey’s view.

For the Federal Government, it is a fluid situation. At the moment it is not possible to assess the situation in terms of international law because our picture of this complex and fluid situation is simply not complete so that an assessment could be made. For that reason you will not get such an assessment from the Foreign Office today.”

In a phone call with his Turkish counterpart on the same evening, Foreign Minister Gabriel “stressed his concern about escalation of the situation in Syria and the humanitarian consequences thereof”. The United Nations had pointed out that there were about 324,000 men, women and children, including 126,000 already displaced, living in the Afrin region. The risk posed by the Turkish military operation to civilians was thus great. In fact, 60 per cent of the population was in need of humanitarian aid and relied on humanitarian aid.

While several German politicians and academics considered the Turkish military operation in Syria a violation of international law, the Federal Foreign Office continued to try to avoid any assessment of the Turkish intervention under international law. In reply to a question of whether the Federal Government considered the Turkish intervention in Syria as being contrary to international law the spokesperson for the Federal Foreign Office said on 24 January 2018:

“Perhaps I can once again explain in principle that an international legal assessment can only be made conclusively if one knows all the facts. The reason for this is that international law is a law that uses general legal terms such as proportionality, etc. International law is a law that needs to take into consideration concepts such as effective control, the activities of terrorist organizations, and attacks that can lead to such things [as the right to self-defence]. In this respect, it is only possible to give an international legal assessment, if one exactly knows all the facts which allow one to enter into an assessment. I think that is simply not the case at the moment in the fluid situation we are seeing right now. […]

It is also the case – and I would like to reiterate this – that this question, Turkey’s entire action in Syria, is, of course, also being discussed in the United Nations Security Council B deliberations we support B and that the United Nations Security Council is the important body under international law which possibly may come to an assessment of this situation. […]

For a legal assessment, one needs a comprehensive picture and knowledge of all the facts in order to be able to interpret the legal terms of international law open to interpretation. From the point of view of the Federal Government this is not the case at the moment.”

The spokesperson’s reference to the United Nations Security Council was rather striking considering that nothing had happened in New York. Following Turkey’s incursion into northern Syria’s Afrin province, France on 21 January 2018 announced that it had called for an emergency meeting of the Council over Syria. However, no emergency meeting was ever held. Instead, on 22 January 2018 the Security Council met for its regular closed consultations of the whole. During those consultations, the Council, under “any other business”, received a closed-door briefing by the UN Under-Secretary-General for Political Affairs, Jeffrey D. Feltman, on “the situation in Syria” more generally. No statement was issued at the end of the meeting and the President of the Security Council declined to answer any question on what Under-Secretary-General Feltman had told the Council or what views had been expressed by Council members on the Turkish military operations. The Council President was not even prepared to comment on the question of how many delegations had raised the issue of the Turkish military operations as there was “no agreed language” on whatever was discussed.

The only government minister offering some hidden criticism of Turkey’s military operations was Defence Minister Ursula von der Leyen, who stated in an interview on 24 January 2018:

“It is understandable that Turkey wants to protect its people against the terrible terrorist attacks of the PKK, but that does not justify a disproportionate reaction and therefore I can only join the United Nations in calling for moderation on all sides.”

Interestingly, no such call had been issued by the United Nations. In her statement the Defence Minister implied that, even if there had been ongoing terrorist armed attacks by the PKK, Turkey’s full scale military incursion into Syria’s Afrin region would have to be considered disproportionate and thus illegal under international law.

On 25 January 2018, Foreign Minister Gabriel issued a statement on the situation in Turkey declaring that the “German Government remains deeply concerned about the military conflict in northern Syria” but keeping his silence on any question of international law.

The next day, asked about a legal assessment of the Turkish military operation in Syria, the spokesperson of the Federal Foreign Office reiterated, once again, the position that “the assessment of a situation from the perspective of international law requires knowledge of the exact circumstances” and that the Federal Foreign Office “does not have knowledge of the exact circumstances”. This answer was repeated like a mantra in subsequent government press conferences.

On 7 February 2018, the Federal Foreign Office’s walk-on-eggshells approach took on a new twist. Asked for a public international law assessment of Turkey’s operation in Afrin, the spokesperson for the Federal Foreign Office replied:

“By the way, I would also like to point out that, of course, we are assessing the situation together with our international partners. […] There is naturally an exchange of views between the members of the international community of States because international law is, of course, a law of the international community of States. […]

International law is a law of the international community of States. It is not just the position of the Federal Government that is crucial to the assessment and progressive development of international law but, above all, the position of the international community of States. It is exactly this dialogue we are naturally engaged in at the moment. […] In principle, the assessment of the situation, of international peace and security by the UN Security Council is, of course, of particular importance. […] Of course, we exchange views with our European partners and, of course, we are also looking for an intensive exchange with France on this matter.”

Politically, it may be understandable that Germany did not want openly to denounce the military operation of a fellow NATO member State as a violation of international law. Legally, however, arguments such as “international law is a law that uses general legal terms” or “the legal terms of international law [are] open to interpretation” border on the absurd. On other occasions, a “complex and fluid situation” did not prevent the German Government from quickly coming up with a legal assessment. For example, when on 2 March 2014 soldiers in unmarked uniforms seized complete control of the Crimean peninsula German Chancellor Angela Merkel, on the same day, denounced the unacceptable Russian intervention as a “violation of international law”. Similarly, one day after the poison gas attack in the Khan Shaykhun area of northern Syria and long before a final assessment by a competent international body Foreign Minister Gabriel was able to state that “the members of the Assad regime who are responsible for this barbaric [war crime] must be held accountable”. By resorting to flimsy excuses and by employing double standards to avoid a legal assessment of the situation in northern Syria, Germany undermined the credibility of international law. By not clearly calling a spade a spade, Germany also contributed to the further erosion of the prohibition of the use of force.