21 Oct Turkey’s Operation “Peace Spring” and International Law
[Vito Todeschini is an Associate Legal Adviser at the International Commission of Jurists’ MENA Programme]
On 9 October 2019, Turkey launched operation “Peace Spring” in the territory known as Rojava, in north-east Syria. The operation aimed at driving the Kurdish-led People’s Protection Units (YPG) and Syrian Democratic Forces (SDF) out of a number of towns close to the Turkish border and to create a “safe zone” where to resettle Syrian refugees. After days of fighting, a United States-brokered ceasefire has temporarily halted major hostilities in view of the evacuation of the SDF from the Turkey-Syria border.
The aim of this post is to discuss some of the legal issues that arise in connection with operation “Peace Spring”, particularly with regard to jus ad bellum, international humanitarian law (IHL), human rights law and international criminal law.
Jus ad bellum
In its letter to the UN Security Council, Turkey indicated the right to self-defence under article 51 of the UN Charter as the legal basis for using armed force in Syria. As expressly indicated in the text of this provision, a State may invoke self-defence only when it has been the victim of an “armed attack”. If that condition is satisfied, any defensive use of force is subject to the requirements of necessity and proportionality (ICJ Nicaragua, para. 194). A State that acts in self-defence without respecting these conditions and requirements violates the prohibition of the use of force under article 2(4) of the UN Charter and customary international law. In most serious cases, such use of force may qualify as an act of aggression.
Turkey identified the following circumstances as justifying its use of force:
… 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.
Such a vague description of the factual basis for using defensive force does not meet the test of the right to self-defence under international law (see Rebecca Mignot-Mahdavi’s comment). As observed by Claus Kreß:
… it is impossible to see how Operation ‘Peace Spring’ could be justified under international law. The alleged ‘harassment fire’ by Kurdish units is being referred to in the Turkish letter in such a vague form that it is almost impossible to be verified. Even assuming there had been cross-border Kurdish ‘harassment fire’ at some point or points in the past, it is not apparent how this could reach the intensity threshold for a non-State armed attack. Even less is it apparent how Turkey’s massive use of force could be necessary to counter such ‘harassment fire’.
This means that if Turkey fails to demonstrate that it has been the victim of an armed attack, operation “Peace Spring” gives rise to a breach of the prohibition of the use of force and, given the scale and magnitude of the armed force employed, amounts to an act of aggression.
It is also to be noted that it remains an open question whether the right to self-defence justifies the use of force against non-State actors located in another State, which did not provide its consent. While States that have conducted airstrikes against the Islamic State in Syria relied on an expanded version of collective self-defence (e.g. Germany), it remains unclear to what extent this is established law. This means that Turkey’s use of force against the YPG and SDF could still amount to a violation of international law even if it actually demonstrated that it was the victim of an armed attack.
Conflict classification and IHL
Regardless of the legality of Turkey’s use of force under the jus ad bellum, operation “Peace Spring” gave rise to an armed conflict to which IHL applies. In the case at hand, it can be argued that multiple armed conflicts have arisen. The conflict between Turkey and the YPG/SDF is of a non-international character given that (a) one of the parties is a non-State armed group; (b) such group is sufficiently organized; and (c) the hostilities have reached the required level of intensity. This makes Common Article 3 of the Geneva Conventions (GCs) and relevant customary IHL norms applicable to the conflict (Turkey is not party to Additional Protocol II).
According to the 2016 ICRC Commentary on GC I (Common Article 2), an international armed conflict may arise from “an unconsented-to invasion or deployment of a State’s armed forces on the territory of another State – even if it does not meet with armed resistance” or from the use of armed force “against the enemy’s territory, its civilian population and/or civilian objects, including (but not limited to) infrastructure” (paras. 223‒224). Following this interpretation, operation “Peace Spring” gave rise also to an international armed conflict between Turkey and Syria (Van Schaack & Brooks) governed by the four GCs as well as relevant customary IHL norms (differently from Syria, Turkey is not a party to Additional Protocol I, which therefore does not apply to the conflict).
Even if one does not subscribe to the ICRC’s approach to conflict classification, involvement in the hostilities by Syria and Russia, which have mobilized following the request of assistance by the SDF, would give rise to an international armed conflict with Turkey (note that Additional Protocol I would apply in the relations between Syria and Russia, which are parties thereto, but not with respect to Turkey).
It must be stressed that, regardless of issues of classification, parties to the conflict are bound by the customary principles of distinction, proportionality and precaution in attacks, and by the overarching obligations regarding the protection of civilians and persons hors de combat as well as civilian objects.
Human Rights Law
Turkey is party to various human rights treaties, including the International Covenant on Civil and Political Rights (ICCPR) and the European Convention on Human Rights (ECHR). The existence of an armed conflict and the ensuing applicability of IHL does not mean that human rights law ceases to apply (ICJ Wall para 106). With respect to the right to life, the Human Rights Committee affirmed that:
… article 6 continues to apply also in situations of armed conflict to which the rules of international humanitarian law are applicable, including to the conduct of hostilities. While rules of international humanitarian law may be relevant for the interpretation and application of article 6 when the situation calls for their application, both spheres of law are complementary, not mutually exclusive. Use of lethal force consistent with international humanitarian law and other applicable international law norms is, in general, not arbitrary. By contrast, practices inconsistent with international humanitarian law, entailing a risk to the lives of civilians and other persons protected by international humanitarian law, including the targeting of civilians, civilian objects and objects indispensable to the survival of the civilian population, indiscriminate attacks, failure to apply the principles of precaution and proportionality, and the use of human shields, would also violate article 6 of the Covenant … They must also investigate alleged or suspected violations of article 6 in situations of armed conflict in accordance with the relevant international standards (GC 36, para. 64).
While the rules of IHL may be relevant to interpret article 6 of the ICCPR, particularly in relation to the conduct of hostilities, the right to life remains protected under the Covenant. As a consequence, violations of the relevant rules of IHL, e.g. the targeting principles, entail a breach of article 6 of the ICCPR. This in turn obliges the responsible State to provide victims with an effective remedy and to open an investigation that respects international standards. The European Court of Human Rights confirmed that the ECHR also applies during armed conflict (Hassan paras. 102 ff).
Both the ICCPR and the ECHR apply extraterritorially, meaning that a State remains bound by such treaties outside its territory vis-à-vis those persons and areas that fall under its effective control or authority (GC 36, para. 63; ECtHR Al-Skeini, paras. 130 ff). Accordingly, Turkey bears obligations under both treaties in respect of all persons whose rights are affected by operation “Peace Spring”. It is worth emphasizing that beside those rights that are most directly impacted on by military operations, such as life and personal liberty and security, other rights may also be affected: the rights to water, health, food and housing. These are protected, among others, by the International Covenant on Economic, Social and Cultural Rights and the Convention on the Rights of the Child, to which Turkey is party. Similarly to what has been observed in respect of the right to life, violations of applicable IHL rules give rise to violations of such rights as well.
The prosecution of crimes under international law
Crimes under international law include, among others, extrajudicial executions, torture and other ill-treatment, sexual violence and war crimes. Individual criminal responsibility may derive through a variety of ways, including material perpetration, ordering or superior responsibility. This means that not only soldiers on the ground or aircraft pilots may be charged with crimes under international law but also their superiors, who did not prevent or punish the commission of such crimes by their subordinates when they had, or should have had, knowledge thereof. Individual criminal responsibility may even accrue to the Turkish President Recep Tayyip Erdoğan, as well as other high-level officials involved in the planning, preparation, initiation or execution of operation “Peace Spring”, for the crime of aggression under international customary law ‒ or under article 8 bis of the Rome Statute, should the Security Council refer the situation to the International Criminal Court (Kreß).
Among others, the OHCHR reported of crimes having allegedly been committed by Turkish forces or Turkish-backed armed groups during operation “Peace Spring”. Allegations comprise attacks against civilians and civilian objects, extrajudicial executions (see the case of Harvin Khalaf), and torture and ill-treatment. Turkey bears an obligation under both IHL and human rights law to investigate and prosecute, when sufficient evidence exists, such allegations. Third States may also pursue criminal action against alleged perpetrators by exercising universal jurisdiction. As noted by Beth Van Schaack and Julia Brooks, all States parties to the GCs have an obligation to investigate and prosecute those crimes defined as grave breaches (see e.g. article 146 of GC IV), which can be committed in the context of an international armed conflict. This obligation would therefore apply in respect of the conflict between Turkey and Syria (and possibly Russia).
Turkey is bound by a web of legal obligations with respect to the initiation and conduct of operation “Peace Spring”. Should Turkey demonstrate unwillingness in fulfilling such obligations and live up to ensuing responsibilities, third States may take all appropriate political and legal measures to address the situation. The Security Council should act promptly, in accordance with its mandate to maintain and restore international peace and security, and its Permanent Members should refrain from stopping such action by exercising their veto power.
Moreover, third States have the following obligations: (1) under Common Article 1 of the GCs, to ensure respect for IHL; (2) under the law of State responsibility, to refrain from aiding or assisting Turkey’s military operation, and to cooperate to bring to an end serious breaches of peremptory norms of international law (jus cogens), including the prohibition of aggression (see Adil Haque’s comment in this respect). A concrete measure in this direction, taken by certain States, is the halting of transfers of arms and military equipment to Turkey.
While at the time of writing the ceasefire seems to hold, hostilities may still resurge. It is therefore crucial that all parties involved, as well as third States, know what the applicable legal obligations are, and respect and implement them accordingly.