The state actors have an inherent right to defend themselves under international law. However there are conditions attached to this exception of use of force as elaborated in the charter of the United Nations. Use of force to defend oneself complying with the norms of international law is permitted so that states can preserve their sovereignty, security, political and social independence. In case of an armed attack, states are obliged to prove that the retaliation was within the parameters defined under the article 51 o f the United Nations Charter. If the state meets the defined criterion then it does not bear any international responsibility, but can this be said in the case of Turkish military incursions in the Syrian territory against the military wing of Yekîneyên Parastina Gel (abbreviated as YPG)?
The right to self-defence itself is not a problem but rather when can the states claim to use this right? The second question that arises is how can an armed attack be defined? International law has made it clear that the right to self-defence can be exercised against the assailants within the frontiers of the victim state; but can this right be exercised if the assailants are operating from the bordering countries? What if these assailants who have carried out an armed attack are non-state actors? Can internationally wrongful acts be attributed to non-state actors?
Before we delve into whether the excuse for Turkish military incursions based upon article 51 is internationally acceptable or not, it is essential to develop an understanding of the historical background of self-defence, definition of an armed attack, limitations on and conditions a state must meet to exercise the right of self-defence, the stance of International law about defending the state against non-state actors launching attacks from another state and justification to cross the borders of the host state to confront with the assailants.
Historically the concept of self-defence originates from the book law of nations authored by Emerich de Vettel in the year 1758. In the year 1648, with the Treaty of Westphalia, modern concept of nation states emerged. Inviolability of borders and non-interference in the matters of another state became an international norm. Violating sovereignty of another state meant that the victim state could retaliate in the name of self-defence. However a few scholars differ from the aforementioned view and are of opinion that the origin of the concept of self-defence can be traced back to the ancient Greek and Roman societies. However during that period the word self-defence was known as ‘just war’. Just war was waged against the other state when it had failed to maintain the sanctity of its obligations and refused to make any amends.
The roots of the modern concept of self-defence can be traced back to the Caroline incident in the 19th century. Britain due to her participation in the World War I and World War II had logistically and economically exhausted herself, because of which controlling the vast empire became a burdensome job and gave way for rebels to rise up against the British colonialists. In Canada such rebellions also arose against the British rule. The United States of America though had declared itself to be neutral, was covertly supplying arms to the rebels through its Canadian Border. In the year 1837 the British violated the privacy of the Caroline Ship that was berthed at the Niagara River. The troops killed the Americans on board and then later burned the ship. British justified their actions on the contention that the ship was being used to bring assistance to the rebels. The Americans not solely disagreed but claimed that the British have violated their sovereignty by illegally crossing into American border. The British retaliated by justifying their violation as an act of self-defence. Relations between the two countries normalized after multifarious diplomatic exchanges. The Caroline incident shaped the modern understanding and practice of the right of self-defence.
The right to self-defence became a part of the international law in the year 1945 with the incorporation of Article 51 of the United Nations Charter. The scope of the Article 51 and its applicability has been clarified by the ICJ in multifarious cases inclusive of which are Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), and Legal Consequences of the Construction of a Wall in the Occupied Palestinian Territory. The contemporary customary understanding of self-defence does not only encompass the idea that retaliation is subject to a military attack, but also constitutes countering a threat prior to its execution; which is called as preemptive self-defence.
Article 51 of the UN charter states:
“Nothing in the present Charter shall impair the inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.”
The scholars have interpreted this article in the light of two practices the conventional and the customary respectively. The first group of scholars interpret the article 51 with confined lenses. According to them the right to self-defence or the use of force can only be deemed legal if there is an actual armed attack. In other words there must be an actual attack by the assailants to justify retaliation. The second group of scholars disagree with this interpretation of the scope of aforementioned article. They are of the view that in case where the threat to a state’s sovereignty and its security is eminent, it is better to take precautionary measures so the threat’s intensity can be minimized or eradicated altogether. Their argument is that the right of preemptive self-defence was part of the customary practice prior to the formation of the charter of the United Nations. Even if the charter of the United Nations only mentions retaliation in case of an armed attack however it does not declare that the pre-existing customary practice of preemptive self-defence has become exhausted. Therefore the right of preemptive self-defence can be exercised by the states in the 21st century because customary practices are an important source for interpreting international law.
The United Nations was formed after the end of World War II. Maintaining peace, security and increasing co-operation amongst the state members are some of the primary goals of the organization. There are multifarious articles in the charter that address the member states to exercise restraint in the initial stages of a conflict and try resolving the issues with diplomatic means rather than violent ones. The option of use of force is highly discouraged and should be used if all the other means for prevalence of peace become exhausted.
Chapter I – Article 2(4) of Charter of the United Nations states:
“All Members shall refrain in their international relations from the threat or use of force against the territorial integrity or political independence of any state, or in any other manner inconsistent with the Purposes of the United Nations.”
The article 51 is an exception to this article and previous others which deal with non-use of force. However there are conditions attached to use of force without which a state cannot launch an attack first. Following requirements of the Caroline Test (based upon a letter written by secretary of state Daniel Webster to the British Ambassador right after the Caroline incident) need to be met:
1. Necessity: The use of force is necessary because of the threat being posed by the rival state or non-state actor.
2. Proportionality: The response whether retaliatory or preemptive must be in proportion to the threat being posed.
3. Immediacy: The immediate use of force was necessary to minimize the damage in the future because it was either the use of force first or to become a victim of the threat’s materialization.
Article 51 added another condition which was:
4. Security Council’s Intervention: The states are supposed to consult with the Security Council before exercising their right to self-defence. If the Security Council fails in ensuring prevalence of peace then it becomes internationally acceptable for the states to exercise this right.
Prior to the tragic 9/11 attacks International Law was strict about the use of armed force against the non-state actors in territory of another state. The Security Council passed two very important resolutions in this regard, 1368 (2001) and 1373 (2001). Both of these resolutions recognized the inherent right of victim state actors to take actions of either collective or individual self-defence against non-state actors. The resolutions raised the bar of responsibility for the state actors for example if State A felt threatened from a non-state actor within the boundaries of State B and Stat e B is not taking any measures to control the non-state actor, then State A can exercise use of force for the purpose of self-defence against the non- state actor in the territory of State B.
Basically these two resolutions have extricated the prohibitions given in t he article 51 of the United Nations charter.
However there still are conditions attached to the use of force in the territory of another state:
1. Intensity of Attack: The Attack was large in scale and caused great destruction.
2. Evidence of State’s Involvement: The state from where the non-st ate actor has launched attack is helpless and weak to strain the non-state actor.
3. Justification for Use of force: Force can be used to either prevent or s top the threat of attack.
The Turkish-Kurdish issue is an ethnic and territorial conflict, the roots of which can be traced back to the 19th century. The Kurdish people claim that territories of north-eastern Syria, north-western Iran, north-eastern Iraq, southern Armenia and south-eastern Turkey collectively form the historical boundaries of Greater Kurdistan. This demand of a separate homeland which constitutes territories from Turkey and other states has been and is unacceptable to the preceding Turkish governments and the current one.
The problem started after the signing of Treaty of Lausanne in the year 1923 by the ethno-nationalist government of Kemal Ataturk. With the passage of time the grievances grew and it gave birth to the Kurdistan Workers Party (PKK). The goal of the insurgent party is to gain greater autonomy for the Turkish Kurds. The violent insurgency has from time to time contributed in creating problems for the country despite of the country’s effort to strengthen the Kurdish community. Yekîneyên Parastina Gel and the Syrian Democratic Forces are made up of insurgents from the Kurdistan Workers Party, which explains why the Turkish government felt threatened by their presence in the North-eastern Syrian border. Recep Tayyip Erdogan, the President of Turkey ever since the year 2015 had wanted to establish a buffer zone in the north-eastern border but was not able to do so because of the presence of American troops in the region fighting Islamic State of Iraq and Levant alongside with the Syrian Democratic Forces. After the withdrawal of United States ‘ troops, on 19th October, 2019 the Turkish military forces launched ‘Operation Peace Spring’ citing two reasons:
1. Resettlement of 2 million Syrian refugees
2. To curb the growing influence of Yekîneyên Parastina Gel which was playing an active role in launching smear campaigns against Turkish military forces in north-eastern border of Syria
Prior to incursion, Turkey sent a letter to United Nations Security Council in which it justified its incursion based upon Article 51 of the United Nations Charter. Neutralization of terrorists and aversion of threat being posed by the insurgent groups were the goals outlined in the letter. Turkish incursion into the territory of Syria has been declared as illegal and a violation of peremptory norms of international law by a few scholars and analysts. In their opinion Turkish incursion does not fit into the conditions laid down by the Caroline Test, therefore Turkish actions in the Syrian territory are illegal and a clear violation of international law. However this argument is invalid in Turkey’s case because when it comes to armed attack for preemptive self-defence against non-state actors, the customary practice has always side-lined the conditions of the Caroline test. The United States of America has multifarious times set a precedent where based upon an expansive interpretation of the Article 51 of the united nations charter has launched attacks against non-state actors present within the borders of another state. A good example of this can be the Bush Doctrine under which the then President of United States Bush declared that in order to win war against terrorists the defensive approach needs to be dropped and offensive position needs to be adopted so the enemy posing a threat can be dealt with in time. Another example that can be quoted in defence of Turkey ‘s incursion is the letter that President Obama sent to the United Nations Security Council for announcing plans of deployment of American troops in Syria. The United States argued that if a state is either unwilling or incapable of preventing attacks being launched from its territory by non -state actors then the fellow state actors may use armed force on the territory of that state so attacks can be prevented. Furthermore the international law is ever evolving and with the presence of resolutions such as 1368 ( 2001), 1373(2001), 1624 (2005) therefore the Turkish incursion to ward off the threat before its realization was justified and not a violation of international law.
Disclaimer: The views expressed in the blog are the writer’s own opinion. Dunya News will not be held responsible for any kind of discrepancy.