The Violations of Sovereignty and the Right to Self-Determination in Rojava and Ukraine

[Dr. Loqman Radpey is a Research Associate of the Edinburgh Centre for International and Global Law (ECIGL) at the University of Edinburgh in Scotland. He writes extensively on Kurdistan and statehood, self-determination and the Kurds, and the ‘Social Contract’ (i.e., the constitution) of Rojava.]

Violations of international law are by no means rare in today’s world but the reactions to breaches from the international community vary greatly. At times the reaction is simple: Silence. In general, assaults on state sovereignty have been taken more seriously than other breaches of international norms and principles. However, the varied responses from states and international organizations towards the violation of this most fundamental principle have, in turn, led to more instability, unfriendly relations, and friction between states.

The Violation of Ukrainian Sovereignty

The Russian Federation’s continuing violation of the internationally recognized borders of Ukraine encountered robust condemnation from the international community of states at the 11^th emergency session of the UN General Assembly. This began with the overwhelming adoption of Resolution ES-11/1 on 2 March 2022, loudly and clearly demanding that Russia “immediately, completely and unconditionally withdraw all of its military forces from the territory of Ukraine within its internationally recognized borders”. The initial attempt, as expected, had failed at the Security Council three days after the overt aggression began.

The General Assembly vote resounded for justice in this case. But have states and international organizations taken the same principled stance in comparable cases of aggression committed by other states? The recent record bears scrutiny.

International Law Violation in the Context of Rojava

In January 2018 and again in October 2019, Turkey invaded the Kurdish self-ruled territory of Rojava (Western Kurdistan) in Syria under the pretext of ‘self-defence’ although there is no record of any armed attack by Kurds in Rojava against Turkey. Turkey’s justifications were considered a violation of the conventions governing the use of force and a breach of other principles of international law. Moreover, Turkish actions in the second phase of its aggression have incontrovertibly led to the mass displacement of people, summary executions that qualify as war crimes, and unlawful attacks, as reported by the UN High Commissioner for Human Rights and Amnesty International. In its report in September 2020, the UN Independent International Commission of Inquiry on the Syrian Arab Republic documented continuing and widespread patterns of violations and abuses, particularly war crimes of pillage and hostage-taking, property appropriation, the use of civilian houses for military purposes by Turkish forces, arbitrary detentions, interrogation of Kurds about their faith and ethnicity by Turkish officials, denial of food or water to Kurdish prisoners, and the coercive expulsion of civilians primarily of Kurdish origin from areas under effective Turkish control. The sabotage of religious and archaeological sites of profound significance protected by UNESCO has been ongoing in Afrin and other regions.

Since the invasion, occupied districts have been administered directly by Turkish governors. The Turkish government has established public schools using a curriculum similar to that of the Turkish Ministry of Education, opened branches of the Turkish postal service, built a new regional campus of Turkey’s Gaziantep University, and imposed Turkish state symbols in the public space. Turkey and its allies have also weaponized water against the Kurdish regions of northern Syria by cutting and restricting water supplies during the pandemic. Since 2018, ethnic cleansing of Kurds and demographic change through settling many thousands of non-Kurds into occupied areas have been non-stop policies of Turkey in Afrin, Serê Kaniyê, Tell Halaf, and Girê Spî, and elsewhere under Turkish occupation. Cutting down thousands of olive and forest trees has been another heinous violation of Turkish-backed factions. These are just some of the many egregious violations of rights imposed by the Turkish occupation. The Rojavan authorities and the Syrian Observatory for Human Rights have documented almost all systemic breaches of international law conventions and treaties in Rojava by Turkey and the militias under its control.

The first unprovoked offensive was faced with soft ‘concerning’ language. However, the second illegal Turkish military offensive in Rojava was condemned by the Arab League, the European Council, NATO, the chairs of the foreign affairs committees of the parliaments of Germany, France, and the UK, the European Parliament, and the US House of Representatives. These bodies have cited Turkey’s unlawful use of force against Kurdish forces of People’s Protection Units (YPG, Yekîneyên Parastina Gel) and Women’s Protection Units (YPJ, Yekîneyên Parastina Jin) as well as infringement on the sovereignty of the Syrian state, and called on Turkey to cease its unilateral military action and to withdraw its forces from Syrian territory. Additionally, they proposed or enacted a series of sanctions and restrictions.

But these sanctions proved to be merely temporary as the international community reacted non-committally and the language used towards the perpetrator was not as severe as it might have been, e.g., to merely call on Turkey rather than demand as a matter of legal obligation. But the seriousness of rights violation is no less than what has been seen so far in the war in Ukraine. The Turkish occupation of Rojava is now four years old and faces no further objections from any third-party country or international organization. No investigation has been opened by the International Criminal Court (ICC) or any other national court for the crimes committed in Rojava. No resolution has been adopted either by the Security Council or General Assembly. Kurdish forces were not provided heavy weaponry or anti-aircraft missiles to defend themselves and their homeland during their long resistance against the Turkish aggression despite being a partner in the Global Coalition against ISIS and other terrorist groups. In spite of playing a decisive role in liberating and clearing nearly all the territory that the Islamic State controlled in the region, the Kurds have not received meaningful support in exercising their right to self-determination.

Both Turkey and the US relied on Article 51 of the UN Charter to justify their fight against the Islamic State, al-Qaeda, and other extremist groups in Syria. This raises a puzzling question in regard to the complex Syrian conflict: how could both the US and Turkey rely on the same international law framework whilst one supported the Kurds militarily in their fight against ISIS and the other tried to eliminate the material basis of the Kurds’ right to self-determination?

Contrasting Responses from the International Community

The sovereignty of Syria and Iraq is frequently violated by Turkey’s drones and aircraft leading to the killing and displacement of Kurdish civilians and refugees of a UN registered camp in the Kurdistan Region. Recently on 17 April 2022, Turkey launched further aerial and ground intervention against the Kurdistan Workers Party (PKK) positions in the Kurdistan Region. The continuing Turkish invasion over the last decade has led to the evacuation of hundreds of villages in the region. The complaint that Turkish forces have used prohibited chemical weapons against Kurdish forces has been ignored by the international community. These violations have been met with deafening silence. Professor Anne Peters anticipated this in 2018 in her talk on Afrin in Rojava; the silence of the lambs has indeed facilitated further unlawful trans-border violence.

By contrast, Russia is now grappling with quick and unprecedentedly crippling sanctions by the US, the UK, the EU, and other individual states. Russia has not remained immune from even sporting sanctions. Furthermore, security assistance and other aid packages are continuing to flow to the victims of Russian aggression. Thanks to the provision of anti-aircraft weaponry, Russia does not exercise complete air superiority over Ukraine. Moreover, the situation was referred to the ICC by 41 States Parties and subsequently, an investigation was opened on 2 March 2022. The General Assembly reconvened the Emergency Special Session on 23 March for the second time on the crisis in Ukraine. Additionally, the UN Human Rights Council has agreed to the establishment of a commission to investigate violations committed during Russia’s military attack on Ukraine. In a more recent development on 7 April, the General Assembly suspended the membership of the Russian Federation in the Human Rights Council.

Advanced weaponry is being delivered by states to Ukraine to defend against the Russian assault, which has slowed the pace of Russian forces in Ukrainian territory. States have taken every possible measure to confront Russia and to support Ukraine politically and militarily to sustain itself against a nuclear power. In other words, states have taken ‘positive action to facilitate the realization of and respect for the right of peoples to self-determination’ (UNHRC in its General Comment No. 12 Article 1). And still more would come on sanctions, supportive measures, and other additional security assistance for the Ukrainian people. Economic assistance and supplemental weapons and ammunition are flowing as well.But such favorable treatment has not always been the case with other nations and collectivities entitled to the right to self-determination.

Interestingly both the US and Russia have relied on the right of self-determination of peoples under the UN Charter and customary international law to justify their respective support to the people of Ukraine and to “the Donetsk and Luhansk Peoples’ Republics” respectively. In this context, Russia designates the inhabitants of Donetsk and Lugansk as distinct peoples who are entitled to implement external self-determination allegedly due to non-compliance by the state of Ukraine ‘with the principle of equal rights and self-determination of peoples’ under a government which is not representative of all Ukrainians without distinction as to race, creed or color. In this case, Russia follows the so-called remedial approach of peoplehood, whereby it grants the status of peoplehood to a minority to allow them to exercise a right to external self-determination — if the minority is not treated well or oppressed by its host state. But Russia has never adopted this approach with regard to the Kurds under the Syrian regime, which has not recognized the Kurds’ separate identity and has suppressed them through various assimilation policies, including Arabization, over the last decades. On the contrary, Russia has supported the Assad regime and has played a decisive role in the continued slaughter of the Syrian civilian population for more than a decade of the civil war in Syria. Although conditional secession is stipulated in Paragraph 7 of General Assembly Resolution 2625(XXV) (1970 Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States), apart from the Canadian Supreme Court decision on the Quebec referendum, no international court has ever recognized remedial secession and external self-determination of a sub-state population. The safeguard clause (Paragraph 7) of the Declaration provides no justification for the prohibited use of force and acquisition and annexation of territory by force.

Unlike Russia, the international community of states has recognized Ukraine as an independent state, considers it a democratic country, and views its government as representing the entire population of its national territory. From this perspective, which is the prevalent standing in legal scholarship, all the inhabitants of Ukraine constitute an undivided self for recognition as a self-determination unit. The international community applies a majoritarian and territorial or whole people formula, i.e., entire populations within international borders as a whole are designated as peoples, but individual sub-groups are not granted that status.

The Legal Implications of the Disparities

The contrasting practical reactions of the international community towards the Turkish invasion of Rojava and the recent Russian assault on Ukraine may trigger a challenging question in the mind of international law readers: Why should there be such an uneven approach towards blatant breaches of the same fundamental principles of international law? Does that suggest a hierarchy of sovereignty? Are some states ‘more equal’ than others? It is evident that the silence of states has not only adversely affected the exercise of the right to self-determination by the Kurds but has also jeopardized the peace and security of the whole Middle East. Since 2012, Rojava has been a safe haven for all peoples, including Kurds, Arabs, Assyrians and other displaced Syrians. The distinction in treatment between the two cases is explicable by pointing out that the international community of states does not consider Rojava self-rule as a self-determination unit. In December 2015, the Security Council endorsed the Final Communiqué of the Action Group for Syria through Resolution 2254, reconfirming the legal or formal criteria of peoplehood; ‘the Syrian people [or the whole people of Syria] will decide the future of Syria’. The Syrian people encompass ‘[a]ll groups and segments of society’ (Final Communiqué) in the country.

In actual international state practice, it has been outsiders who have decided who constitutes a people, not the peoples themselves. Groups have been designated as peoples on different territorial or ethnic criteria, given the lack of a permanent or standard definition for the term people. Varying uneven responses in self-determination contexts such as Rojava, the Kurdistan Region, Donetsk and Luhansk, have advanced some cases for self-determination while also setting back others, including the Kurdish people. As a matter of international practice, not all peoples are entitled to exercise self-determination as some peoples’ de facto nationhood is deemed less legitimate than that of others. Self-determination is still in practice a Eurocentric concept, whereas in the Middle East self-determination has remained a chimera.

The Russian invasion of Ukraine once again demonstrates that the violation of some states’ sovereignty is somehow considered more illegitimate than others. This is the case especially with mandate states including Iraq and Syria, which became independent artificially and included different ethnic and national groups within their borders. This difference in reactions provokes mistrust in the UN system as a whole which, once in place, makes the prospects of overcoming an impasse all the more difficult, as in the case of Syria. To maintain international peace and security, the UN must be determined to remove all threats to peace and to suppress acts of aggression or other breaches of the peace in every context. Otherwise, the rules on international peace and security forfeit their legal force.

The Russian offensive against Ukraine is an example of the blatant violation of territorial integrity of a sovereign state. Any violation of sovereignty of any state and its occupation must be condemned by other states regardless of the context of the infringement or the identity of the perpetrator. However, the lack of strong condemnation or the use of soft language towards transgressions of international law has emboldened violating states, jeopardizing peace and security.

The result of the disparities between international responses to various international conflicts and the unevenness in application of international law is that future violation of states’ sovereignty is undeterred. The threat to international peace and security will continue as long as the sovereignty of states is not considered equal in practice as well as in law. International peace is the outcome of honoring human rights including the right to self-determination for all peoples.