Monthly Archives: March 2018

The Use of Force of Turkey in Rojava after the Capture of Afrin. Consequences for International Law and for the Syrian Conflict.

On 20 January 2018 Turkey initiated a military operation in the territory of Northern Syria, also known as Rojava: an area under Kurdish administration which is increasingly gaining international legitimacy as a result of both its struggle against the Daesh and its model of a system of governance based upon respect for human rights and multicultural coexistence . To date, the main attacks have targeted the Region of Afrin (one of the three cantons of Rojava – the other two being Jazira and Kobane) which was captured by Turkey on the 18 March of this year. However, Turkey has expressed its intention to expand the attacks in the rest of Northern Syria and possibly in the territory of Iraq. The military operation was given the Orwellian name of Operation Olive Branch

The present analysis argues that Operation Olive Branch constitutes a violation of ius ad bellum and amounts to a crime of aggression. Furthermore, the continuation of attacks violates the 30-day ceasefire established by the Security Council in Resolution 22401 of 24 February 2018. Furthermore, reports from the field indicate a pattern of war crimes.

The strategic importance of Turkey in the maintenance of the equilibrium of the region has silenced the reaction of most actors in the area, as well as of the international community. The acquiescence towards the violations committed by Turkey in Northern Syria risks undermining the current interpretation of the fundamental tenets of self-defence as a legitimate basis for use of force, and, from a political perspective, risks jeopardising the Syrian peace process.

The Olive Branch Operation as a War of Aggression

Since 20 January 2018, Turkey has been carrying out military operations in Rojava, and on 24 March, it declared itself to have established full control over the region of Afrin. The area is controlled by the Democratic Federation of Northern Syria, also known as Rojava or Syrian Kurdistan. Turkey argued for the legality of the intervention in a letter to the Security Council sent on 22 January of the same year.

Turkey bases the legitimacy of its actions on art. 51 of the UN Charter, thereby invoking the principle of self-defence, against a “threat of terrorism”. According to the document, this threat undermines Turkish national security, as well as the territorial integrity of Syria, and regional and international security.

However, there are fundamental flaws in Turkey’s argument that its actions were legal under international law. The Turkish justification falls within the evolving legal regime of self-defence against imminent terrorist attacks in territories which are not under the control of any State. Notwithstanding the complexity and fluidity of the legal issues at stake, it seems uncontroversial that, in the present case, the use of force of Turkey is blatantly illegal. First, Turkey is required to clearly substantiate its allegation that an armed attack took place (ICJ, Armed Activities in the Territory of the Congo (2005), para. 146). In this case, however, Turkey merely mentions general “threats of terrorism”, not even imminent, occurring at its Syrian border. In addition, self-defence against a non-state actor, such as Rojava, would, arguably, only be legitimate only in presence of large scale attacks (ICJ Congo v. Uganda 2005, para. 147): a circumstance which does not arise in the present case. The argument that the operation was intended to safeguard the territorial integrity of Syria is also problematic, in that the Government of Damascus has denounced it as an act of aggression, in a letter to the UN Security Council.

Furthermore, the Kurdish institutions controlling the region of Afrin, and other groups active in the area, are not designated as ‘terrorist’. Turkey defines the Kurdish administration in Northern Syria as the PKK/KCK/PYD/YPG terrorist organisation. In so doing, Turkey equates the Turkish Kurds organization, the PKK, (Kurdistan Workers’ Party Partiya Karkerên Kurdistanê) to the Kurdish administration of Northern Syria (PYD,  Partiya Yekîtiya Demokrat, Democratic Union Party) and its militia (YPG, Yekîneyên Parastina Gel, People Protection Units). While the PKK is considered to be a terrorist organization by several states, including the US and the EU (but not other states or entities, inter alia, the United Nations), the Syrian institutions are not listed as terrorist organisations. On the contrary, they receive military support in the fight against Daesh from the international coalition Combined Joint Task Force – Operation Inherent Resolve.

In its declaration to the Security Council, furthermore, Turkey affirms that it targets Daesh activity in the region of Afrin. The Syrian army, however, has denied that ISIS has a presence in the area.

With the attack in Northern Syria, Turkey invoked the principle of self-defence against a potential threat of terrorism, in the absence of an armed attack, and against a group which is not largely acknowledged as being terrorist. In so doing, Turkey violated the prohibition to use force, in blatant violation of the fundamental tenets of self-defence as a legitimate basis for use of force.

The tacit acceptance of the abuse of the self-defence principle to carry out military operations may contribute, under certain conditions, to a normative change in the prohibition to use force. An extensive interpretation of self-defence, and the tolerance of non-authorised military operations, may extend the possibility to use force beyond the current limits established under international law, and allow States to justify acts of aggression with arguments of self-defence against threats of terrorism.

The violation of Resolution 22401 and Reports of War Crimes

On 24 February 2018, the UN Security Council unanimously adopted Resolution 22401, which demands “a durable humanitarian pause for at least 30 consecutive days throughout Syria”. The Resolution was adopted following the increase in violence by the Syrian army in Ghouta and Idlib, which are specifically mentioned in the document. Conversely, because Afrin is not mentioned in the document, Turkey has argued that its military operation in Afrin is not covered by the Resolution, and that the Resolution does not prohibit the use of force against the Kurdish targets.

While specifically referring to Ghouta and Idlib in the context of humanitarian crises and the escalation of violence in the territory of Syria, the Resolution clearly states that the only exception to the ceasefire, imposed “throughout Syria” relates to the operations against Daesh and Al Qaeda. The humanitarian pause, therefore, is fully applicable in relation to Northern Syria and the Turkish attacks against Kurdish militia, therefore, fall squarely within the scope of the Resolution.

During the military operation, Turkish forces are reported to have perpetrated a pattern of serious violations of international humanitarian law. The UN High Commissioner for Human Rights has denounced deliberate attacks against civilian populations. The Syrian Observatory for Human rights reports the mutilation of female fighters, the use of gas weapons, the execution of refugees, and the bombing of an hospital, all of which constitute a pervasive pattern of war crimes.

The silence of the international community

From January 2018, Turkey has been perpetrating grave violations of international law including: a violation of the ius ad bellum regime; failure to adhere to a UN Security Council Resolution; and a pattern of violations of humanitarian law.

The Syrian Government immediately denounced the aggression against its territorial integrity, but the strategic importance of Turkey as a key regional power and as a NATO member, has hindered a strong international reaction against the aggression. The United States, the European Union and most of the international community have only expressed concern for the humanitarian situation.

This is regrettable due to the fact that, on a political level, the armed conflict between Turkey and the Kurdish area of Northern Syria jeopardises the possibility of an end the Syrian conflict. The Kurdish administration of Northern Syria manages an important part of the territory of the country. The Kurds are currently establishing an extremely progressive regime based on democratic confederalism, feminism, social ecology and human rights. Additionally, Syrian Kurds have renounced to the struggle for statehood and have indicated that would accept to constitute a federation under the control of Damascus.

The federal proposal of Kurdish Syria could, in principle, obtain the support of the different actors involved in the conflict, and inspire a possible path to reach the end of hostilities as well as towards rebuilding a post-conflict Syria. First, the acceptance of an autonomous region within the Syrian State could lead to an agreement with the central Government of Damascus. Second, the US are militarily supporting the Kurdish administration in the fight against Daesh, obtaining the liberation of the “capital” Raqqa in October 2017. Third, Russia, a federation itself, and a supporter of the current Syrian Government, does not exclude federalism as a possible model of administration for the post-conflict country. The consistent opposition of Turkey, however, has excluded the Syrian Kurdish representation from the international talks in Geneva and Astana.

The main challenge to this potential solution is indeed the exclusion of the PYD from the Peace talks, which is due to the opposition of Turkey as well as of other Syrian rebel groups, including other Kurdish groups. Its participation in this international forum would have strengthened the Rojava administration, in terms of both its stability in the field and its visibility as an ambitious model, for the international community and in particular for Syria, to administer a multicultural society.

Conclusion

Turkey is perpetrating grave international crimes, within the territory of Syria, against Kurds. Given the key role of Turkey in the region, the international community does not appear to be able to condemn the violations. In so doing, however, international law loses its effectiveness and risks allowing further abuses in the legal regime governing the use of force. This could contribute to a normative change in the definition of legitimate self-defence. Furthermore, the Rojava administration, which has been labelled by Turkey as a terrorist organisation, is among the main actors in the fight against Daesh. Finally, it is the only democratic model of governance in the Syrian territory, promoting the respect of human rights and multicultural coexistence. With its military campaign in Northern Syria, Turkey seriously weakens position of one of most relevant actors in the peace process for the region and one of the few players representing democracy, human rights and multicultural coexistence in the post-conflict Syria.

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The Italian legislation on foreign and unaccompanied minors between international principles and EU good practices: is a new de iure condendo perspective needed?

  1. Introduction

Over the past few years, the European Union has adopted a number of Directives relating to migrant rights. In particular, European Union Directive 2013/33/EU, laid down standards for the reception of applicants seeking international protection, while Directive 2013/32/EU established common procedures for the granting and withdrawal of international protection. In Italy, these Directives were implemented by means of legislative decree n. 142 of 2015 (hereinafter dlgs n. 142/2015)Law n. 47, of 7 April 2017, (hereinafter Lg. n. 47/2017), and legislative decree n. 220, of 22 December 2017 (hereinafter dlgs. N. 220/2017).

This post will focus on the recent Italian legislative developments in relation to unaccompanied minors. Following an overview of the legislation and the guidelines issued by the European Union, the post will highlight some outstanding issues relating to the existing body of legislation in the field and will seek to address whether a new legislative perspective is needed.

  1. The international principles and EU guidelines.

On 19th September 2016, the General Assembly of United Nations, adopted the ‘New York Declaration for Refugees and Migrants’ (hereinafter the NY Declaration), through resolution 71/1. In Section I, para 3, the Declaration states that ‘We are witnessing in today’s world an unprecedented level of human mobility. More people than ever before live in a country other than the one in which they were born. Migrants are present in all countries in the world. Most of them move without incident. In 2015, their number surpassed 244 million, growing at a rate faster than the world’s population. However, there are roughly 65 million forcibly displaced persons, including over 21 million refugees, 3 million asylum seekers and over 40 million internally displaced persons’ (NY Declaration, Section I, para 3).

One of the main concerns for the United Nations, as well as for other supranational non-State actors, such as the European Union, is that, as has been demonstrated, a high degree of human mobility increases the number of unaccompanied children among migrants. The NY Declaration sets out a number of commitments towards migrant and unaccompanied children. One of these is the ‘equality’ clause at paras 5 and 6, which affirms the equality between migrants and refugees in terms of entitlement to international human rights protection. It includes this among the priorities of the international community, recalling established principles like the ‘best interests of the child’ and the special status of children as ‘vulnerable’ (paras 58 – 59 NY Declaration). In relation to the procedure granting international protection to third country nationals and migrants, the declaration affirms States’ commitment to ensuring “access for children to child-appropriate procedures” (para 70, NY Declaration).

The European Union, which is currently facing huge inflows of migrants through the European-African route, has shared the same concern for guaranteeing the adequate protection of third country national minors, especially unaccompanied children, in accordance with the principle of the best interests of the child. The ‘EU Guidelines for the Promotion and Protection of the Rights of the Child (2017) – Leave no child behind’, issued on the 7th of March 2017, recalled, established and pointed out some examples of good practice. The tool is general in nature and is, therefore, applicable to all the sensitive situations which could require the safeguarding of the rights of children: the management of migration certainly falls within its scope.

On this specific point, on the 12th of April 2017, the European Commission, recalling the NY Declaration itself, addressed the ‘Communication on The protection of children in migration’ (COM(2017) 211 final) to the EU Parliament and the Council, highlighting the best practices applicable to migrant and unaccompanied minors. In this document the Commission highlights several improvements requested of EU Member States with the aim of complying with EU standards relating to the identification procedure, the (adequate) standard of reception and the effective access to status determination procedures. All of these matters should be addressed by the EU Member States, in the Commission’s view, in accordance with the Council proposal for a Common European Asylum system (COM(2016) 467 final), the Council of Europe Guidelines on child-friendly justice and the EASO (European Asylum Support Office) recommendation and practices on age assessment procedure in Europe.

  1. The Italian legislation on foreign and unaccompanied minors.

At the same time that the European Commission issued its communication, Italy began its own reform process of the legislation on unaccompanied children, with the aim of complying with the new obligations established. It also issued its response to alleged violations which gave rise to Infringement proceedings opened against Italy in 2014 by the European Commission about the matter at stake. The allegations, made in a letter issued on the 11th of July 2014, listed several violations of Directive 2003/95/EU and Directive 2003/9/EU committed by Italy. In particular, it was stated that the Italian asylum system failed to grant both an expeditious and adequate procedure for the minors seeking international protection, and a high standard of conditions for their reception in the territory.

Lg n. 47/2017 aimed to integrate the already existent discipline of reception, international protection and the asylum procedure, as well as introducing regulations on unaccompanied children, regardless of their status as refugees, asylum seekers or any other status.

The law focuses on some key points, grounded on the principle of the best interests of the child, namely: the definition of the unaccompanied minor as a vulnerable subject; the principle of non-refoulement and the special return policy; the creation of a national database aimed at collecting and sharing data on unaccompanied and foreign minors at both the national and European level; and the introduction and the reaffirmation of some significant procedural guarantees in the identification and determination of the age of minors. Regarding the latter point, the law introduced a significant modification to dlgs 142/2015, by adding a new art. 19-bis. The provision establishes some mandatory steps to be followed in the reception of a foreign minor, regardless of the status of the child. These include: the medical procedures needed to determine the age of the child (which should be as non invasive as possible); an informative interview, conducted by qualified personnel; the judicial appointment of a legal guardian; an investigation on the family situation and conditions of family life; and the duty to fully inform the minor about his/her own right to apply for any form of international protection. Also particularly significant are the provisions of Art. 15 (the right of the minor to be heard in any judicial proceedings on their own interests) and Art. 16 (the right to legal representation in any proceedings and the assistance of a lawyer of their own choice).

These two specific guarantees comply with the universal principle of the effective participation of minors in proceedings involving their own interests, which, in the case of unaccompanied minors and asylum-seekers, needs to be protected even further, due to the special vulnerability of the applicants involved.

Dlgs 220/2017 builds upon Lg. n. 47: in particular, Art. 2 significantly modifies the procedure to appoint a guardian. In line with the request by the EU to grant an adequate and expeditious procedure in a specialized and streamlined system, the competence for this is assigned to the Youth Court, instead of the Civil Litigation Section of the Ordinary Tribunal.

As regards the procedure to apply for international protection, dlgs. 220 significantly modifies the clause included in Art. 19 bis of the Law Decree n. 13/2017 (converted into Law n. 46/2017 – hereinafter the Decreto Minniti). The latter, which significantly reformed the regulation of reception and asylum/international protection procedures, provided for a ‘clause of non applicability’ of the regulation to unaccompanied minors. This aimed to exclude sensitive and vulnerable minors from the general regulation.

Notwithstanding the several recent reforms, the Italian immigration system does not yet provide for a special regulation and procedure for unaccompanied minors seeking international protection. Furthermore, in excluding unaccompanied minors from its scope, the Decreto Minniti de facto created a normative vacuum. The dlgs 220/2017 solves the issues by referring, even in the case of unaccompanied minors, to the applicability of Decreto Minniti in the part relating to the international protection and asylum seeking procedure and to any other related administrative procedure.

The modification of the non applicability clause of the Decreto Minniti by the dlgs. 220 suggests a proposal de iure condendo. The total absence of a comprehensive code of procedural and substantial provisions specifically for the protection of the foreign and unaccompanied minors seeking international protection would suggest to intervene to fill the gap.

Italian legislation currently in force encompasses a significant number of different regulations: the comprehensive code of immigration law (Decreto legislativo, testo coordinato, 25/07/1998 n° 286, G.U. 18/08/1998), as integrated and amended; dlgs 145/2015, implementing directives 2013/33/EU and 2013/32/EU; the most recent so-called Decreto Minniti, converted into Law n. 46/2017; Law n. 47/2017 on unaccompanied children; and, lastly, dlgs n. 220/2017. The last three tools supposedly amended the Code of immigration law. This situation creates an uncomfortable patchwork of regulations.

  1. Final remarks

The current legislative framework is so fragmented and convoluted that it would appear to run counter to the fundamental principles as well as objectives set out by supranational bodies and with which the Italian system is trying to comply.

From a strictly legislative point of view, the recent reforms in Italian legislation deserve to be acknowledged as being formally consistent with European Union regulations and guidelines, as well as with the international principle of the best interests of the child.

However, the fragmentation in the relevant legislative tools creates a confused framework that makes it difficult to really cater for the most vulnerable category of migrants (children), who deserve to be prioritized. In this sense, the adoption of a comprehensive code of regulation in the field could probably help Italian interpreters and front line operators to intervene as best as they can to ensure the highest standard of substantial and procedural guarantees for accompanied and unaccompanied minors seeking international protection.Berlin

 

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