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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 US and Information and Telecommunications in the Context of International Security: Which implications for the ius ad bellum?

INTRODUCTION

The issue of information security has been the subject of study of the First Committee of the UN General Assembly since 1998. This study originated in a proposal submitted to the General Assembly by the Russian Federation , which later became the consensus Resolution 53/70, inviting all States to inform the Secretary-General of their views about, inter alia, the ‘[a]dvisability of developing international principles that would enhance the security of global information and telecommunications systems and help to combat information terrorism and criminality’.[1] Since then, four Groups of Governmental Experts (GGEs) have been established and submitted the result of their work to the UN Secretary General, who is asked to report to the General Assembly. A fifth group has been established in December 2015, being expected to meet for the first time in August 2016 and submit its report in 2017.

In October 2014 the US submitted before the fourth GEEs a position paper, which was not, however, completely embraced by the other experts in their 2015 final report. This paper is in any case relevant as it is possible to derive from it important conclusions regarding the US opinio iuris on some aspects of the ius ad bellum, in particular the law of self-defence. This post aims at highlighting such implications and is structured as follows. First, I will analyse the issue of Information and Telecommunications in the Context of International Security as it has been dealt with within the UN; then, I will focus on the US position paper. I will conclude that, when it comes to the notion of ‘armed attack,’ the US Administration might have a broader understanding than the international community as a whole, to such an extent as to include any violation of article 2(4) UN Charter.

 

Information and Telecommunications in the Context of International Security at the UN

In line with its predecessors’ mandate, the fifth GGEs is supposed ‘to continue to study, with a view to promoting common understandings, existing and potential threats in the sphere of information security and possible cooperative measures to address them and how international law applies to the use of information and communications technologies by States’.[2] Since both the 2013 and 2015 reports consistently affirmed that international law, in particular the UN Charter, is applicable to the cyber-sphere, and that the latter applies ‘in its entirety’,[3] it is unclear why it could still remain to be seen how the Charter would apply. In fact, the UN Charter and all relevant UN instruments should provide sufficient guidance in this respect.

The reasons behind this uncertainty seems to be connected with a political tension within the GEEs. Russia, China, Pakistan, Malaysia and Belarus have in fact strongly opposed the US proposal of making an express reference to article 51 UN Charter, namely, the provision regulating states’ inherent right to use force on the grounds of self-defence to repel or prevent an actual or imminent attack.[4] They argued that the acceptance of this proposal would permit the US to affirm its supremacy in the cyberspace, which would then become another militarized area.

The report finally adopted does not mention article 51 UN Charter, but identifies

‘as of central importance the commitments of States to the following principles of the Charter and other international law: sovereign equality; the settlement of international disputes by peaceful means in such a manner that international peace and security and justice are not endangered; refraining in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations; respect for human rights and fundamental freedoms; and non-intervention in the internal affairs of other States.’[5]

Moreover, while recognizing the need for further study in this respect, the report notes ‘the inherent right of States to take measures consistent with international law and as recognized in the Charter.’ [6] The reference here is clearly to the right to use force in self-defence, without explicitly mentioning it.

The US and the notion of armed attack

Leaving aside any consideration with regard to what the next GGEs could further establish, what is interesting here is the US legal position on the matter. Indeed, it might help clarifying the Administration’s stand on some aspects of the ius ad bellum as they are provided by the UN Charter, the corresponding norms of customary law, and all other relevant instruments adopted within the UN, including the UN GA Res 3314 (1974).

This Resolution, adopted by consensus by the General Assembly in 1974, provided a definition of aggression, which -at least in some of its parts- has been considered reflective of customary law by the International Court of Justice.[7] Its article 3 also provides a non-exhaustive list of acts that constitute aggression. At the 2010 Kampala Review Conference, States Parties to the International Criminal Court adopted a consensus definition of the crime of aggression which makes an explicit reference to the Resolution and incorporates its article 3. The US has since then kept consistently opposing the Kampala amendment for a number of reasons, including its reference to Resolution 3314.

While not all acts of aggression would also constitute an ‘armed attack’ within the meaning of article 51 of UN Charter, the latter is no doubt both an act of aggression and a serious violation of article 2(4) UN Charter, which requires states to refrain ‘in their international relations from the threat or use of force against the territorial integrity or political independence of any State, or in any other manner inconsistent with the purposes of the United Nations’.[8] The force to which the provision makes reference has been originally conceived so as to encompass only military episodes.[9]

The US position paper submitted in 2014 broadens the range of situations in which a state may legally resort to force in self-defence. First, the paper expands the definition of armed attack, and therefore indirectly enlarged the list of acts of aggression, by including some cyber activities. In particular,

‘States should consider the nature and extent of injury or death to persons and the destruction of, or damage to, property. Although this is necessarily a case-by-case, fact-specific inquiry, cyber activities that proximately result in death, injury, or significant destruction, or represent an imminent threat thereof, would likely be viewed as a use of force / armed attack.’[10]

Such a ‘threat of an imminent armed attack in or through cyberspace is not [always] associated with a corresponding threat of imminent armed attack through kinetic means’,[11] and, consistently with what the US has been affirming since the 9/11 terrorist attacks,[12] can be committed by states or non-state actors.

Second, the position paper equated an armed attack to a generic ‘use of force’ (borrowing this language from article 2(4) UN Charter), without specifying the gravity or seriousness thereof. This means, therefore, that every single violation of article 2(4) UN Charter would constitute an armed attack and, as a consequence, an act of aggression.

Last but not least, in relation to those cases of self-defence fought against non-state actors and without the consent of the so-called territorial state, the US position paper reaffirmed what has been claimed over the last decades with regard to the US war against different terrorist organizations, namely, that an alleged victim State may resort to force when the territorial state is unwilling or unable to stop or prevent the actual or imminent armed attack.[13] This would also apply to the case of an ‘armed’ attack launched in or through cyberspace. However, it was added,

‘[i]f the territorial State does not consent to the use of force on its territory because it proposes to take a reasonable alternative course of action to respond to the actual or imminent armed attack or to allow others to do so, it generally should not be treated as “unwilling”.’[14]

This statement constitutes further clarification with respect to previous practice and could no doubt apply within the context of any US pre-emptive use of force against terrorist groups based in a state considered to be unwilling because it is ‘publicly silent’ when facing the risk of a military intervention justified on such grounds.

CONCLUSION

Although not wholly embraced by the fourth UN GEEs’s report adopted, the US position paper submitted to the Group in 2014 might reflect the Administration’s opinio iuris in relation to some spheres of the law of self-defence. On the one hand, as consistently claimed by the US since the 9/11 terrorist attacks, an armed attack within the meaning of article 51 UN Charter may be committed by either state or non-state actors. Moreover, an alleged victim state could act in self-defence also against a non-state actor, and even in the absence of the territorial state’s express consent.

On the other hand, the US position paper suggested that the US Administration could consider as armed attack (which, by its nature, is also an act of aggression) any violation of article 2(4) UN Charter. It furthermore provided a broader definition of armed attack so as to include cyber activities that do not imply any kinetic force. These two aspects, if upheld by the group, might well contribute to the modification of both the relevant provisions of the UN Charter and the correspondent customary norms.

[1] UNGA Res 53/70 (4 January 1999) UN Doc A/RES/53/70, para 2(c) [emphasis added].

[2] UNGA Res 70/237 (23 December 2015) UN Doc A/RES/70/2376, para. 5 [emphasis added].

[3] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 paras. 24 and 28 (c). Cf UNGA 68/98 (24 June 2013) UN Doc A/68/98 para. 19.

[4] US Secretary of States, Daniel Webster, Letter to the British Envoy Extraordinary and Minister

Plenipotentiary in Washington on 24 April 1841 (as cited in Eric Heinze, Malgosia Fitzmaurice,

Landmark Cases in Public International Law (Martinus Nijhoff Publishers 1998) 1247-1255.

[5] See UNGA 70/174 (22 July 2015) UN Doc A/70/174 para. 26 [emphasis added].

[6] ibid. para. 28 (c) [emphasis added].

[7] Case Concerning Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America) (Merits) General List No 70 [1986] ICJ at 195.

[8] Article 2 (4) UN Charter [emphasis added].

[9] See, e.g., US Representative to the Sixth Committee of the UN General Assembly, John S Cooper,

Statement on 25 November 1968 (1080th meeting) in OR of the UN General Assembly (Twentythird

session). Sixth Committee. Legal questions. Summary records of meeting (1968).

[10] Ibid.

[11] Ibid.

[12] See US Permanent Representative to the UN, John D Negroponte, Letter to the President of the UN Security Council on 7 October 2001 UN Doc S/2001/946.

[13] See Yoram Dinstein, War, Aggression and Self -Defence (5th ed., Cambridge University Press 2011) 275.

[14] United States paper submitted to the 2014–15 Group of Governmental Experts on Developments in the Field of Information and Telecommunications in the Context of International Security (October 2014).

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