A roundabout way to say that the Turkish invasion of north-eastern Syria is illegal under international law

Published: 21 October 2019  Author: Stefan Talmon  DOI: 10.17176/20220113-165616-0

In its ninth year, the armed conflict in Syria saw a new development. On 9 October 2019, Turkey launched a military incursion into north-eastern Syria, code-named “Operation Peace Spring”. The aim of the operation was to “counter the imminent terrorist threat” caused by the Kurdish Democratic Union Party (PYD) and its military wing, the People’s Protection Units (YPG), which Turkey considered to be the Syrian branch of the Kurdistan Workers’ Party (PKK). The PKK had been fighting for an independent Kurdish State since the 1980s and was listed as a terrorist organization by Turkey, the United States and the European Union. The “PKK/PYD/YPG” occupied large parts of Syrian territory along the border with Turkey and regularly carried out cross-border attacks on Turkish military posts and civilians. Turkey intended to establish a so-called “safe zone” extending some 32 kilometres into Syria along the 444 kilometre-long boundary between the two States in order to ensure Turkey’s border security and to liberate Syrians from the tyranny of terrorist organizations. Turkey which hosted some 3.6 million Syrian refugees also planned to re-settle up to 2 million of these refugees in that zone.

Source: https://www.bbc.com/news/world-middle-east-49963649

Turkey relied on the right to self-defence under Article 51 of the UN Charter as the legal basis of its military operation in Syria. In a letter to the President of the Security Council, it stated:

“Turkey initiated Operation Peace Spring on 9 October 2019, in line with the right of self-defence as outlined in Article 51 of the Charter of the United Nations, to counter the imminent terrorist threat, to ensure Turkey’s border security, to neutralize terrorists starting from along the border regions adjacent to Turkish territory and to liberate Syrians from the tyranny of PKK’s Syrian branch, PKK/PYD/YPG, as well as Deash.

Turkey’s national security has been under the direct and imminent threat of terrorist organizations operating in the east of the Euphrates in Syria, among which Deash and PKK/PYD/YPG are at the forefront. […]

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. Among other terrorist activities, they have been smuggling explosive devices, weapons and ammunition into Turkey with the aim of empowering PKK-affiliated units not only inside Turkish territories, but also in Afrin and Bab districts to commit deadly terrorist attacks against innocent Syrian and Turkish citizens alike. […].”

On 9 October 2019, Federal Foreign Minister Heiko Maas issued the following statement on the Turkish offensive in north-eastern Syria:

“We condemn the Turkish offensive in north-eastern Syria in the strongest possible terms. Turkey’s actions run the risk of further destabilising the region and provoking the resurgence of IS.

Syria has been severely impacted by war over the last eight years and the country needs stability and a political process, which will begin shortly with the establishment of the Constitutional Committee. However, the Turkish offensive now threatens to unleash another humanitarian disaster as well as new refugee movements. We call on Turkey to end its offensive and to pursue its security interests in a peaceful manner.”

On the same day, Germany on behalf of the five European Union members of the UN Security Council – the EU5 (Belgium, France, Germany, Poland, and the United Kingdom) – requested the Security Council to urgently discuss the Turkish military offensive under “any other business” in a closed door meeting the next day. The Security Council, however, could not agree on a joint statement on the Turkish offensive. After the meeting on 10 October 2019, the Deputy Permanent Representative of Germany to the United Nations therefore made the following statement on behalf of the EU5 and Estonia as incoming EU Member State on the Security Council, on the situation in Syria:

“We are deeply concerned by the Turkish military operation in north-east Syria. We call upon Turkey to cease the unilateral military action as we do not believe it will address Turkey’s underlying security concerns. Renewed armed hostilities in the north-east will further undermine the stability of the whole region, exacerbate civilian suffering and provoke further displacements which will further increase the number of refugees and IDPs [Internally Displaced Persons] in Syria and in the region.

Unilateral military action on Turkey’s part threatens the progress achieved by the Global Coalition against Da’esh. It will undermine the security of the Coalition’s local partners, including the Syrian Democratic Forces, and risks protracted instability in north-east Syria, providing fertile ground for the resurgence of Da’esh, which remains a significant threat to regional, international and European security.

It is unlikely that a so-called ‘safe zone’ in north-east Syria, as envisaged by Turkey, would satisfy international criteria for refugee return as laid down by UNHCR. We maintain our position that refugee and IDP returns to their places of origin must be safe, voluntary and dignified when conditions allow. Any attempt at demographic change would be unacceptable. We want to be clear that the EU will not provide stabilization or development assistance in areas where the rights of local populations are ignored.

Turkey is a key partner of the European Union, a NATO ally and a member in the Global Coalition against Da’esh. It is a critically important actor in the Syrian crisis and the region, and we recognize Turkey’s important role as a host country of Syrian refugees.

We continue to urge all parties to ensure the protection of civilians and unhindered, safe and sustainable humanitarian access throughout Syria.

We remain committed to the unity, sovereignty and territorial integrity of Syria.  We reaffirm that a sustainable solution to the Syrian conflict cannot be achieved militarily but only through a genuine political transition in line with UNSCR 2254 and the 2012 Geneva Communique, negotiated by the Syrian parties within the UN-led Geneva process. This process should not be undermined by any party.”

While German international lawyers widely considered the Turkish military operation to be illegal under international law, there was no mention of international law in any of the German Government’s statements. The Government strongly condemned the operation and called for its immediate end because the operation ran the risk of further destabilizing the region, exacerbating civilian suffering and provoking further displacement, and sparking a resurgence of the Islamic State terrorist organization. But, it did not do so because the unilateral military action did not meet the requirements of the right of self-defence under Article 51 of the UN Charter and, therefore, constituted a violation of the prohibition of the use of force.

As in the case of Operation Olive Branch, the Turkish military incursion into Syria in January–March 2018, the German Government tried to avoid any legal assessment of the Turkish operation. Applying the Federal Foreign Office’s usual stonewalling tactics on such questions, the spokesperson for the Foreign Office declared on 11 October 2019:

“Ultimately, one will only be able to assess what has happened there – also in legal terms – if one knows the scope, if one knows the duration, if one can see if the actions are necessary and proportionate – you know the discussion. It is still too early for that.”

While in the case of Operation Olive Branch the Federal Foreign Office had managed to successfully stonewall any questions on the legality of the Turkish military operation for several weeks, this time it changed its tactics. In the face of increasing calls by politicians and academics to condemn the Turkish military operation as illegal, the spokesperson for the Federal Foreign Office on 14 October 2019 replied to the question of whether in the eyes of the Foreign Office the operation was contrary to international:

“In our view, as things stand there is no sign that the current situation in Syria would legitimize a military intervention there against Kurdish groups under international law. In any case, whatever Turkey does, it must be necessary and proportionate. It is of the highest priority that international humanitarian law and the protection of life and limb of the civilian population is observed.”

The Federal Government used the cryptic phrase that “there is no sign that the current situation in Syria would legitimize a military intervention there against Kurdish groups under international law” to say in a roundabout way that the Turkish military operation was illegal under international law without expressly using words such as “illegal”, “unlawful”, or “violation of international law.” Considering that Turkey is a key partner of Germany and the European Union, a NATO ally and a member in the global coalition against the Islamic State terrorist organization, the Federal Foreign Office probably did not considered it politically advisable to openly denounce Turkey as a violator of international law.

While not expressly saying so, Germany did not accept Turkey’ s argument that Operation Peace Spring could be based on the right of self-defence. This becomes clear from a statement by the spokesperson for the Federal Government who declared:

“Turkey faces considerable and recurrent threats from terrorism. However, we do not accept that as justification for the military operation which has just started. For that reason, both the Federal Chancellor and the Federal Government have called for an immediate end of the operation.”

It seems that Germany subsequently tried to downplay the question of Turkey’s violation of the prohibition of the use of force.  Rather than seizing on the violation of the jus ad bellum, Germany focussed in its later statements exclusively on Turkey’s obligations under the jus in bello. Following the Security Council closed consultations on the situation in north-eastern Syria on 16 October 2019, the German Permanent Representative to the United Nations declared on behalf of the EU5 and Estonia: “We repeat our urgent call on Turkey to act in accordance with international humanitarian law.” Similarly, on 18 October 2019, Federal Foreign Minister Maas stated: “We continue to urge Turkey to end its military action, withdraw its armed forces and respect international humanitarian law.”

The pressure on the Government to take a clear position on the Turkish military operation, however, subsequently increased even further. During a TV interview on 20 October 2019 Federal Foreign Minister Mass was asked directly whether the Turkish military operation was in breach of international law. The Minister replied:

“According to everything we know and according to everything Turkey has cited itself as a legal basis, we cannot share that view. We do not believe that an attack on Kurdish units or Kurdish militias is legitimate or can be legitimized under international law.”

Pressed by the interviewer whether the operation, consequently, was in breach of international law, the Minister stated:

“If there is no basis in international law for such an invasion, then it is not in accordance with international law.”

These were the strongest comments yet on the Turkish military operation by a German Government official. However, there was still no clear condemnation of the invasion as being “illegal” or “unlawful”. Rather the Minister introduced a new category of a use of force not being “legitimate” under international law. This led several media outlets to report that Germany considered the Turkish invasion to be “illegitimate”, rather than the invasion being illegal. However, international law does not know the concept of “legitimacy” of the use of force – it only knows the concept of legality.

While the Federal Government thus did not openly condemn Turkey for a violation of international law, other institutions not burdened by the constraints of realpolitik were more outspoken. For example, the Scientific Research Service of the German Parliament wrote in a report on the “International law aspects of the Turkish military operation ‘Peace Spring’ in northern Syria”:

“Similar to Operation Olive Branch in 2018, in the run-up to Operation ‘Peace Spring’ there were no reports in the media about occasional cross-border incidents that which in terms of their scope and effect crossed the threshold of an ‘armed attack’ in terms of Article 51 of the UN Charter – mere ‘border incidents’, so-called ‘measures short of war’ are not sufficient.

There is no indication that such an attack was ‘imminent’ (in line with the restrictive public international law requirements for ‘pre-emptive self-defence’). Turkey also has not made this argument. […].

It is noteworthy that the term ‘armed attack’, which according to Article 51 of the UN Charter is capable of triggering the right to self-defence, does not appear at all in Turkey’s letter of 9 October to the UN Security Council. As in the case of Operation Olive Branch in January 2018 , Turkey once again relies on a merely latent, although continuous threat from terrorist organizations – the letter of 9 October 2019 speaks of ‘breeding ground for various terrorist organizations’ and of ‘direct and imminent threat of terrorist organizations’ – which, according to Turkey, also includes the Kurdish militias of the YPG. […].

In conclusion it may be stated that, even when applying a broad interpretation of the right to self-defence, a current situation of self-defence in terms of Article 51 of the UN Charter on which Turkey could rely, cannot be detected. […].

In the absence of a discernible justification, it must be concluded that the Turkish offensive clearly constitutes a violation of the prohibition of the use of force in Article 2, paragraph 4, of the UN Charter.”

The Scientific Research Service of the German Parliament even went one step further calling the Turkish military operation “internationally unlawful act of aggression” which gives rise to a right of self-defence on the part of Syria.

On 18 October 2019, in a rather unprecedented move, the Chairs of the Foreign Affairs Committees of Germany, France, the United Kingdom, the European Parliament and the House of Representative of the United States of America felt compelled to demonstrate their commitment to their common values, responsibility and interests and, for that reason, issued a joint statement condemning in the strongest terms the Turkish military offensive in north eastern Syria and calling it “a military aggression and a violation of international law.”

While Germany did not expressly call the Turkish military operation in north-eastern Syria a violation of international law, there is no doubt that Germany considered the operation illegal. Although in a rather roundabout way it put on record its position that unspecified “imminent terrorist threats”, abstract “direct and imminent threats by terrorist organizations” to a State’s national security, and “harassment fire on border posts” generally are not sufficient to trigger the right to self-defence under Article 51 of the UN Charter and, even if they did, any action in self-defence would be subject to the requirements of necessity and proportionality. The Federal Government’s statement is to be welcomed as opinio juris against an ever broader interpretation of the right to self-defence in international law.

Category: Category: Use of force

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  • Stefan Talmon is Professor of Public Law, Public International Law and European Union Law, and Director at the Institute of Public International Law at the University of Bonn. He is also a Supernumerary Fellow of St. Anne’s College, Oxford, and practices as a Barrister from Twenty Essex, London. He is the editor of GPIL.

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