Erdogan Has Crossed the Euphrates: Turkish Invasion Into Northern Syria Is in Breach of International Law
DAVIT AVAGYAN* ∙ OCTOBER 19, 2019 ∙ ARTICLE
On October 9, as Turkish warplanes began what would be a six-hour bombardment of Northern Syria, followed by an incursion of ground troops, the Turkish Ministry of National Defense put out a small press release justifying its actions under international law.[1]
Specifically, Turkey cites United Nation’s Charter Article 51, which recognizes a right to self-defense. However, aside from asserting that they have a right under Article 51, Turkey fails to cite any conditions that would satisfy such a right under international law.
To justify its use of force as self-defense, Turkey would have to show that it was under attack or the threat of an imminent attack from Kurdish forces in Northern Syria.[2] If that were so, under international law, Turkey would have the right to use “necessary” and “proportional” means to defend itself,[3] including launching an anticipatory defensive operation. However, the recent developments in the region contradict the existence of any such threat.
For several months before this operation, the Syrian Democratic Forces (SDF) had been complying with a “security mechanism,” an agreement between Turkey, the United States, and SDF, which was to reduce tensions in the region. As part of the agreement, SDF forces demolished defensive fortifications and agreed to remove Kurdish YPG forces, which Turkey views as terrorists, from the vicinity of the Turkish border. Joint patrols with American and Turkish troops were conducted near the Syrian border to assure the Turks of the progress.
No “armed attacks,”[4] as defined by the International Court of Justice, have been launched across the Turkish border during this time and Turkey does not cite to any evidence that an attack was imminent to justify anticipatory self-defense. Yet, Turkey is now conducting massive military operations in self-defense. Given these circumstances, the question remains: what exactly is Turkey defending itself from with the offensive into Northern Syria?
Article 51 has been used before to justify military operations against non-state actors in another state’s territory. Recently, that justification was used by the coalition forces. At the request of Iraq, which has continuously been subjected to ISIS attacks, the coalition forces have argued that collective self-defense has justified encroaching into Syrian territory because it was “unable or unwilling” to stop ISIS from attacking Iraq and others from within Syria. Under international law, an incursion into another state’s territory may be justified if there is an existing or imminent threat of armed attack, and the state cannot prevent its territory from being used by the non-state armed group.
However, Turkey has no evidence that any attack was imminent to even use this “unwilling or unable” argument for its offensive in Northern Syria. All evidence shows that the Kurds were trying to comply with the security mechanism. Instead, Turkey has argued that it wants to prevent the creation of a “terrorist corridor” near its border. With no immediate threat of attack, the subjective fears of Erdogan do not create a right to use force.
Moreover, the scale of the operation that Turkey proposes indicates that the Turkish offensive would not be considered a use of force that would be necessary and proportional to a threat posed by a Kurdish attack. Turkey has been looking to push over twenty miles into Syria, and according to statements by Erdogan, this is not for defensive purposes but rather to “resettle” Syrian refugees.[5]
Turkey’s attempt to use Article 51 to launch a military offensive falls short of even the broadest interpretations of self-defense under international law.
Erdogan’s military incursion into Syria is a clear violation of the prohibition against the use of force, among other violations of international and humanitarian law. Erdogan can threaten states not to call his operation an invasion but, under international law, it is nothing but that.
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*J.D. Candidate, Notre Dame Law School, 2020; member of the Notre Dame Journal of International & Comparative Law; B.A. in Political Science, University of California, Davis, 2016.
[1] Press Release, Republic of Turk. Ministry of National Defense, Operation Peace Spring Press Release, (Oct. 9, 2019), https://www.msb.gov.tr/en-US/Slide/9102019-14512.
[2] Mary Ellen O’Connell, International Law and the Use of Force: Cases and Materials 280 (2nd ed. 2008).
[3] Jan Klabbers, International Law 209 (2nd ed. 2017).
[4] Military and Paramilitary Activities in and Against Nicaragua (Nicar. v. U.S.), Judgment, 1986 I.C.J. Rep. 14, ¶ 195 (June 27) (Not every use of force against a state creates a right to self-defense under international law).
[5] Bethan McKernan, Julian Borger & Dan Sabbagh, Turkey unleashes airstrikes against Kurds in north-east Syria, Guardian (Oct. 9, 2019, 15:44 EDT), https://www.theguardian.com/world/2019/oct/09/turkey-launches-military-operation-in-northern-syria-erdogan.
Tags: Turkey, Conflict, Military, Article 51