23 Oct Research Services of German Bundestag Rejects Turkey’s Syria Invasion: Illegal, but Who Cares?
[Ralph Janik teaches international law at the University of Vienna, Webster University Vienna, and the University of Rostock. He specializes in the interplay of international law and international relations. Twitter: @RalphJanik]
A couple of days ago the research services of Germany’s parliament (the Bundestag) published an expert opinion on the legal aspects of Turkey’s Syria invasion. Its principal findings are clear: “Operation Peace Spring” is “obviously” illegal and there is no obligation to assist Turkey if it tried to trigger the mutual defense clause in the NATO treaty. On the contrary, the opinion even speaks of the possibility of prosecuting Erdogan at the International Criminal Court (!). Given the potential ramifications of these findings, I will seek to provide a brief summary (an English translation is not (yet) available) along with some observations here.
The Silence of Politics
Turkish president Recep Tayyip Erdogan openly announced his intention “to establish a peace corridor” in Northeastern Syria to “enable the settlement of 2 million Syrians there” in his 24 September speech at the UN General Assembly.
Yet, law does not necessarily translate into politics. While the Assad government spoke of “a flagrant violation of international law and a blatant violation of Security Council resolutions”, other states, even Assad’s closest allies Iran and Russia, have been less direct and focused less on the law than on strategic and humanitarian aspects.
Realpolitik 101: Iran and Russia
Iran’s foreign minister called to “end the incursion” while president Rouhani stated that “[t]he Turkish government is our friend, but the way they have chosen is not good, and we believe there are better ways”.
Meanwhile, Russia does not seem to fundamentally disagree with the incursion. Its (apparently) most straightforward commentcame from Putin’s special envoy for Syria who stated that his country “always believed that any military operation in Syrian territory is unacceptable”. A foreign ministry spokeswoman later also emphasized that control over the border region must be transferred to Assad.
The US, then, explained its sanctions by stating that “Turkey’s actions in northeast Syria severely undermine the D-ISIS campaign, endanger civilians, and threaten the security of the entire region” without – as it was so often the case with the Trump administration – pronouncing on the relevant legal aspects.
The “O word”
Lastly, the European Union also refrained from addressing the legality of Operation Peace Spring from the perspective of the ius ad bellum. The Council of the EU 14 October statement is particularly interesting in light of the words not found therein: aggression, force, or occupation – after all, Erdogan openly threatened to send 3.6 million refugees to Europe if the EU used the “O word.” The Council seemingly gave in and only condemned “Turkey’s military action” – it is difficult to think of a more neutral in this connection – “which seriously undermines the stability and the security of the whole region”.
Turkish Offensive “Obviously” Illegal
The research services of the German Bundestag lament this lack of legal assessments/criticism when noting that Greece seems to have been the only NATO member state which rejected the offensive on legal grounds. By way of contrast, the opinion mentions that Germany’s foreign ministry only voiced “doubts concerning its legal validity.” It nevertheless deserves to be mentioned that Foreign Minister Heiko Maas rejected the legality of Turkey’s invasion a few days after the opinion was issued when answering a question on this subject-matter in a TV interview.
In this regard, one should not forget that the German parliament’s research services’ aim is to provide the members of parliament with impartial expertise. They do not reflect the opinion of the Bundestag, its organs, or administration. Nevertheless, these opinions are carefully researched and constitute a valuable source for a variety pressing debates – recent topics included issues such as the rescue of migrants at sea, the prohibition of Nazi symbols, or international prosecution of German ISIS affiliates.
The opinion starts with emphasizing the similarities between “Operation Peace Spring” and Turkey’s previous invasion in Afrin (the research services also issued numerous opinions on this subject-matter). On this basis, it (again) addresses the validity of self-defense against non-state actors and Turkey’s reference to the 1998 Adana agreement with Syria.
Self-defense against quasi-de-facto-regimes permissible
The PYD/YPG has successfully consolidated itself in what they call Rojava already in the early phase of the Syria war. Their autonomy project has gained a lot of international attention as the Kurds were often praised as a model for equality and democracy and for having established relative peace in their territories.
With power comes responsibility. On the one hand, the Syrian Kurds’ human rights track record is not flawless as they faced criticism over eg the conditions in ISIS prison camps, the recruitment of teenagers under the age of 18, or war crimes.
On the other hand, the assessment of activities of such groups under the ius ad bellum has kept the international legal community busy ever since 9/11. The research services’ opinion takes a clear stance here by stating that “it is now generally accepted that self-defense is not only confined to actions against states but also covers actions against actors with a “consolidated territorial basis”.
Not coincidentally, the same term was used by Germany’s constitutional court in its decision on the legality of Germany’s participation in the fight against the so-called Islamic State in Syria issued about a month earlier. Using yet another term of German academic origin, such entities (another example would be Hezbollah in Southern Lebanon prior to the 2006 Israel-Lebanese war) may also be described as quasi-de-facto-regimes: While they exercise territorial control for an extended period of time – similar to “typical” de-facto-regimes –, their existence is not even tacitly accepted as states or even the international community undertake active efforts against them.
No Armed Attack
The legal problem with Turkey’s argument thus lies elsewhere, namely the lack of preceding or imminent cross-border incidents above the intensity threshold required by Article 51 UN Charter. Turkey’s letter to the Security Council does not even mention the notion of an “armed attack” in the first place. Instead, it refers to a “permanent threat by terrorist organizations”, among which Turkey also counts the Kurdish YPG militias. Lastly, the opinion also rejects the idea of interpreting Turkey’s justification as a reference to the accumulation of events-doctrine (which “has been treated rather cautiously in state practice” anyhow). It thus concludes that there is no “general unrestricted ‘permanent right to self-defense’”.
The Adana agreement
Parallel to the right to self-defense, Turkey has long toyed with the idea of invoking the 1998 Adana agreement along with a related agreement from 2010 to justify an invasion in Syria (the German Frankfurter Allgemeine Zeitung published an article on this possible line of argumentation already in 2012). In what seems like an attempt to feed the international community with an additional legal cookie, Turkey’s permanent representative argues that the Adana agreement constituted “a contractual basis for my country to fight all kinds of terrorism emanating from Syrian territory in its hideouts and in an effective and timely manner”.
Interpreting both the agreement and the relevant legal updates from 2010, the opinion does not find any consent whatsoever from either side to accept unilateral invasions of its territory, a finding further corroborated by Syria’s protest. The Adana agreement merely established a basis for mutual cooperation when fighting terrorism (Syria qualified the Turkish PKK as a terrorist organization and bound itself to refrain from providing it with a safe haven).
In what might be seen as a quasi obiter dictum, the opinion does not simply stop – as it could – here but proceeds to emphasize that, even assuming that there was a prima facie valid basis for self-defense, Turkey’s operation would still be “inadequate”: transferring some one to two million Syrian refugees to this area amounts to (ethnical) “reconfiguration of the population”. In any case, the law of occupation prohibits all types of population transfers of protected persons in the affected territory (see Article 49 of the Fourth Geneva Convention).
Consequences for NATO Member States
As already discussed by Kevin Jon Heller in this blog, some worried about the possibility of an obligation upon NATO member states to assist Turkey, a “doomsday scenario” also discussed in German media. Aware of the need to shed some light on this sensitive topic, the opinion explicitly rejects a possible (legal) obligation to take collective action by NATO.
First, it emphasizes that Article 5 NATO treaty does clearly not prescribe an automatic obligation to support attacked states with force. Each and every NATO member state may itself decide how it wants to support its allies – from a strictly legal point of view, a message indicating to “pray” for the affected state would be sufficient.
In addition, mutual defense needs to be agreed upon by all 29 NATO members – which is “rather unlikely” in light of the massive criticism by some NATO members. Such a situation would not even exist if Assad’s forces respond with force as they would simply – and lawfully – react to Turkey’s aggression. This classification would only be reversed if Syria used excessive force.
Erdogan in The Hague?
By explicitly using the “a word”, the research services’ opinion does not shy away from yet another a particularly delicate topic, the possibility of prosecuting Erdogan in The Hague. As unthinkable as such a development may seem, the legal possibility exists. In so doing, the opinion refers to Claus Kreß’s recent blog entry on EJIL:Talk! where he stated that
[t]here is reason to believe that the Turkish President, by giving and maintaining the order for ‘Peace Spring’, could have incurred and could continue incurring individual criminal responsibility for a crime of aggression, as defined in Article 8bis of the Statute of the International Criminal Court. Pursuant to Article 15ter of the Statute, the Court could open a preliminary investigation if the Security Council decided to refer the situation to the Court in accordance with Art. 13(b) of the Statute.
Theory and Practice
The opinion’s core finding is clear: “Lacking an evidentiary basis, the Turkish offensive obviously constitutes a violation of the prohibition to use force in Article 2/4 UN Charter.”
In practice, however, Western governments are seriously restrained when it comes to dealing with Turkey’s invasion. US president Trump is keen on getting his message to pull out of Syria and all the other “endless wars” across. In so doing, he already ignored strategic warnings concerning the abruptness of his decision and a possible re-emergence of ISIS while apparently paying no attention to international law at all.
The EU, in turn, never really set a noteworthy foot on Syrian soil in the first place and has thus generally been left out of peace talks. When it comes to Turkey in particular, its dependence on Erdoğan to act as a “bouncer” preventing refugees from reaching Europe – where they could invoke their right to asylum in accordance with Article 18 of the Charter of Fundamental Rights – has never been more apparent.