Interview with Professor Tom Ruys: “Operation Euphrates Shield: The Legality of Turkey’s Recent Military Intervention in Syria and The Use of Force in Self-Defence against Non-State Actors”

Centre for Policy and Research on Turkey (Research Turkey)

Interview with Professor Tom Ruys:
“Operation Euphrates Shield: The Legality of Turkey’s Recent Military Intervention in Syria and The Use of Force in Self-Defence against Non-State Actors”

On 24 August 2016, Turkey launched a military operation together with the Free Syrian Army (FSA) in Syria. As explained by Turkish authorities, the objective of Operation Euphrates Shield was to secure Turkey’s Syrian border by targeting the so-called Islamic State (IS). However, the Turkish-FSA force simultaneously launched offensive to halt Kurdish People’s Protection Units (YPG)’s advance westward of the Euphrates.

Opposing arguments keep circulating: The Syrian Kurds accuse Ankara of aiming at preventing the YPG from uniting its disparate cantons of Afrin, Jazira and Kobani into one contiguous territory. Meanwhile, the Syrian government has denounced the operation as a violation of Syria’s territorial integrity and sovereignty. In turn, Turkey claims that it is engaged in an act of legitimate self-defense against IS, which launched a number of deadly terror attacks over the past year in Turkey, and the YPG which Turkey considers it as an extension of the outlawed Kurdish Workers’ Party (PKK).

The operation is rapidly advancing day by day, reaching to the outskirts of Al-Bab in the Aleppo Governorate, but there is hardly any debate on the legality of Turkey’s Operation Euphrates Shield in academic circles. Therefore, as Centre for Policy and Research on Turkey (Research Turkey), we conducted an interview to discuss the operation through the lens of international law with Professor Tom Ruys who is an expert on the law of armed conflict.

Professor Tom Ruys is a Professor of International Law at Ghent University. He is the author of several publications, including the monograph ‘Armed Attack’ and Article 51 of the UN Charter: evolutions in customary law and practice’ which was published by Cambridge University Press in 2010.

Professor Ruys was previously awarded the Francis Lieber Prize (2015 article prize and 2011 book prize) as well as the Francis Deák Prize of the American Society of International Law. He is a member of the International Law Association’s Committee on the Use of Force and the International Law Association’s Study Group on Sanctions. He is also serving as co-editor-in-chief of the Journal on the Use of Force and International Law, vice-director of the Military Law and Law of War Review and a member of the editorial board of the Revue belge de droit international.

Interview Summary

“In 2015, shortly after the terrorist attacks in Paris, the Security Council adopted a Resolution no. 2249 in which it called upon states ‘to take all necessary measures’ against IS to prevent it from further continuing actions from the safe haven it has established over significant parts of Iraq and Syria.”

“In light of the cross-border attacks conducted by various non-state armed groups like IS, the underlying idea here is that the right to self-defense ought to be reinterpreted allowing states to defend themselves against these threats.”

“[T]hese States argue that when an attack takes place from the territory of state that is unable or unwilling to prevent this attack, the victim state should be allowed to invoke its right to self-defense. A number of states that are part of the coalition have invoked this interpretation as well. Turkey is also using this argument.”

“The armed attacks that Turkish authorities have invoked are allegedly initiated by IS. The logical implication is that military actions should supposedly target only IS, not the Kurdish positions in Syria nor military installations and troops of the Syrian regime.”

“In light of previous experiences, I am not surprised to see that Turkey has embraced ‘unable and unwilling’ doctrine and it is not the only country to do so though the doctrine still remains highly controversial.”

“I think 9/11 was certainly a turning point. The events in 2001 led to a major revision of a number of military doctrines and security strategies in various countries around the globe.”

“If the right to self-defense becomes too easy for states to invoke, that is a recipe for more abuse and for more conflicts to spread.”

Full Text of the Interview

“In 2015, shortly after the terrorist attacks in Paris, the Security Council adopted a Resolution no. 2249 in which it called upon states ‘to take all necessary measures’ against IS to prevent it from further continuing actions from the safe haven it has established over significant parts of Iraq and Syria.”

Professor Ruys, thank you very much for taking the time to do this interview with us. Does international law justify Turkey’s recent use of force in Operation Euphrates Shield?

Thank you first and foremost for the opportunity to take part in this interview. It is a pleasure. In relation to your question, it is important to keep in mind that when a state engages militarily on the territory of another state, there are in principle only three possible justifications. Either there can be an ‘intervention by invitation’, which the territorial state has consented to. There can be an authorization by the United Nations Security Council under Chapter VII of the UN Charter. Thirdly, a state can invoke the right to individual or collective self-defense in response to an armed attack. If you look at Turkey’s recent actions, which have started not only in 2016 but also already in 2015 and to some extent in 2014, it is clear that reliance on ‘intervention by invitation’ can be ruled out. The Assad Regime, which is the de jure regime of the sovereign state of Syria, has consistently opposed Turkish military operations on its territory and communicated its objections to the Security Council on a number of occasions. Security Council authorization (for Turkey’s recent operation) is also not a valid justification. In 2015, shortly after the terrorist attacks in Paris, the Security Council adopted a Resolution no. 2249 in which it called upon states ‘to take all necessary measures’ against IS to prevent it from further continuing actions from the safe haven it has established over significant parts of Iraq and Syria. If you look at the text and context of the Resolution, however, you have to conclude that it is not a proper legal authorization for the use of military force. A closer look at the Resolution shows that there is no proper reference to Chapter VII, nor a proper authorization to use of force in light of its ambiguous language. The Resolution can be regarded as the result of intensive negotiations at the political level but did not grant an actual legal authorization to use force for states within the framework of Chapter VII. That brings us to the third possible legal basis, which is the inherent right to self-defense invoked by Turkey as a justification for its military actions in 2015 after the attack in Suruç, Diyarbakır that unfortunately killed many people. After the event, Turkey sent a letter to the Security Council in which it invoked the right to self-defense pursuant to Article 51 of the UN Charter, because it perceived itself as being an object of armed attack – which is the main requirement for a state to be able to invoke the right to self-defense. Is it a valid invocation of that right? There are a number of complex issues involved. First of all, for a state to rely on self-defense, there needs to be an armed attack. When you look at the events from 2015, there is some room for discussion as to whether there is an armed attack in the sense of Article 51 of the UN Charter. One relevant aspect in the Turkish case is that, before that letter was sent, Turkey was already militarily involved on Syrian territory. There have been many Turkish incursions back in 2014 before there was a proper invocation of self-defense. There is also another question as to whether there is a sufficiently grave armed attack for the purposes of self-defense. One of the very complex issues in this scenario, which also applies to the other coalition-led operations, is whether a right to self-defense can actually be invoked against attacks by non-state actors.

“In light of the cross-border attacks conducted by various non-state armed groups like IS, the underlying idea here is that the right to self-defense ought to be reinterpreted allowing states to defend themselves against these threats…[T]hese States argue that when an attack takes place from the territory of state that is ‘unable or unwilling’ to prevent this attack, the victim state should be allowed to invoke its right to self-defense. A number of states that are part of the coalition have invoked this interpretation as well. Turkey is also using this argument.”

How does it relate to the ‘unable and unwilling’ doctrine?

There has long been a major controversy as to whether attacks by non-state actors can trigger the right to self-defense. Prior to the 9/11 attacks, the majority view in the legal doctrine as well as amongst states was that for an armed attack to trigger the right to self-defense, there should be some form of state involvement, possible even state imputability. In the present situation we see that IS is acting on its own initiative, without being controlled by the Syrian authorities. Since the 9/11 attacks in 2001, certain states have pushed and pleaded for a more flexible interpretation of the right to self-defense because non-state armed groups have become more powerful and dangerous. In light of the cross-border attacks conducted by various non-state armed groups like IS, the underlying idea here is that the right to self-defense ought to be reinterpreted allowing states to defend themselves against these threats. By means of the ‘unable and unwilling’ doctrine, which is one of the focal points of this discussion, states such as United States suggest a modern interpretation of self-defense. In particular, these States argue that when an attack takes place from the territory of a state that is unable or unwilling to prevent this attack, the victim state should be allowed to invoke its right to self-defense. A number of states that are part of the coalition have invoked this interpretation as well. Turkey is also using this argument. There is nonetheless some discussion in the present case as to whether the Assad regime is actually unable or unwilling to act, as there have been indications that the Syrian regime is willing to take action against IS in coordination with third states.

“The armed attacks that Turkish authorities have invoked are allegedly initiated by IS. The logical implication is that military actions should supposedly target only IS, not the Kurdish positions in Syria nor military installations and troops of the Syrian regime.”

Surprisingly, on 29 November, President Erdoğan said that Turkish forces are in fact, in Syria “… to end the rule of the tyrant al-Assad who terrorizes with state terror.” Although President Erdoğan himself revoked this statement, can Turkey use force against the Syrian regime within the scope of Operation Euphrates Shield? Would it be in line with the international law of self-defense?

Well, the short answer is no. It would not be in line with the right of self-defense. When the right of self-defense is invoked, states only exercise that right vis-à-vis the source of the initial armed attack. The armed attacks that Turkish authorities have invoked are allegedly initiated by IS. The logical implication is that military actions should supposedly target only IS, not the Kurdish positions in Syria nor military installations and troops of the Syrian regime.

If targeting the Assad Regime would not be in line with the right of self-defense, can it be considered as a declaration of war against a sovereign state?

That is a question, which may be well relevant from the domestic law point of view. The existence of declarations of war is relevant in several countries from a constitutional law perspective. From the international legal perspective, however that is really not an issue. International law adopts a more functional approach for purposes of the application of the law on use of force and the law of armed conflict. You have to look at the facts, whether there is a formal declaration of war is not important to this end. It is clear that there is an on-going armed conflict in the territory of Syria and Iraq in which Turkey is involved. If you follow the approach of the International Committee of the Red Cross, that conflict would be regarded as an international armed conflict to which Geneva Conventions apply.

resim-2

“In light of previous experiences, I am not surprised to see that Turkey has embraced ‘unable and unwilling’ doctrine and it is not the only country to do so though the doctrine still remains highly controversial.”

How has the Turkish interpretation on self-defense evolved since 2014?

In retrospect, Turkey has been one of the first countries to embrace a more flexible interpretation of the right of self-defense. Here I am not referring to the actions in 2014, but also to the actions undertaken back in 1990s in northern Iraq. At that time I do not think that Turkey was a staunch defender of the ‘unable and unwilling’ doctrine. They may have applied it in practice; however, they have not invoked that argument at the level of UN Security Council. In that respect, they adopted a more cautious approach. But in light of these previous experiences, I am not surprised to see that Turkey has embraced the ‘unable and unwilling’ doctrine and it is not the only country to do so, though the doctrine still remains highly controversial.

“I think 9/11 was certainly a turning point. The events in 2001 led to a major revision of a number of military doctrines and security strategies in various countries around the globe”

How has the use of force against non-state actors changed international law after 9/11 attacks? Can we speak of instant customary law?

I think 9/11 was certainly a turning point. The events in 2001 led to a major revision of a number of military doctrines and security strategies in various countries around the globe. It also led to a reinterpretation of a number of norms of the international law on use of force. For instance, if you look at the debate on pre-emptive/preventive self-defense, there has been a clear trend in state practice and in international legal doctrine since the 9/11 attacks. The same has been true when it comes to the permissibility of self-defense against attacks by non-state actors. But, I do not think that we can speak of an instant custom. It is an evolution that has been going on for a number of years. We see new evidence in state practice towards a broader right to self-defense. Whether it is an evolution de lege lata or de lege ferenda and whether positive law has already changed is something that authors cannot agree on, and there are arguments on both sides. Still, if you look at the case-law of the International Court of Justice, especially the latest cases pertaining to this issue such as The Wall Advisory Opinion in 2004 and the Armed Activities in the Congo Case in 2005, the Court adopted a more conservative-traditional-restrictive interpretation of the right to self-defense although the cases contain somewhat ambiguous language and although a number of judges have made clear that they no longer support a conservative interpretation of self-defense in their separate opinions.

If the right to self-defense becomes too easy for states to invoke, that is a recipe for more abuse and for more conflicts to spread.”

How do you see the future of international law of self-defense?

Well, there is a trend towards a broader interpretation of the right to self-defense. There have been a number of evolutions in state practice and in legal doctrine. There are still a number of states that do not support this trend and insist on adopting a more cautious approach. The same is also true for legal doctrine. Perhaps I can mention one interesting initiative at this point. There was an open letter a few weeks ago by number of established scholars and experts of the law on use of force. By this letter, they have tried to draw the attention of states to the risks of a broader interpretation of self-defense. That was clearly an initiative urging more caution and awareness of the risks of abuse if we open up Article 51 to any claim. If the right to self-defense becomes too easy for states to invoke, that is a recipe for more abuse and for more conflicts to spread.

Professor Ruys, thank you for meeting with us.

It was a pleasure to do the interview. I wish you and Research Turkey all the success in the future.

Please cite this interview as follows:

Research Turkey (December, 2016), “Interview with Professor Tom Ruys: “Operation Euphrates Shield: The Legality of Turkey’s Recent Military Intervention in Syria and The Use of Force in Self-Defence against Non-State Actors”, Vol. V, Issue 12, pp.6 – 14, Centre for Policy and Research on Turkey (ResearchTurkey), London, Research Turkey. (http://researchturkey.org/?p=13099)

Facebooktwitterlinkedinmail

Comments

Loading Facebook Comments ...

Leave a Reply

Your email address will not be published.