Self Defense Against Irregular Forces in International Law: Turkey’s Illegal Armed Activities in Syria - Dr Wole Kunuji

There can be no doubt that Turkey’s military activities in Northern Syria in the last few weeks are a brazen and blatant violation of established principles of international law. Turkey’s decision to unilaterally invade Syria, despite widespread calls for it to beat a retreat and reconsider its strategy in Northern Syria is nothing short of a deliberate and willful attack on time tested international norms that are at the very heart of the global collective security system. No amount of clever sophistry employed by Turkey and its allies can obliterate this reality.

Two reasons have been given for Turkey’s incursion into Northern Syria. There are indications that the offensive is aimed at removing “Kurdish-led forces from the border area” between Turkey and Syria in order to “create a “safe zone” to which millions of Syrian refugees can be returned.” That would appear to be the official reason for Turkey’s military activities in Syria. The unofficial reason, and the one most obvious to those familiar with the decades-long acrimonious relationship between Turkey and the Kurds in Syria, is Turkey’s obsessive determination to stamp out cross-border Kurdish rebellion in Northern Syria. Authorities in Ankara argue that elements loyal and devoted to the outlawed Kurdistan Workers’ Party (PKK), an organization campaigning for Kurdish autonomy in Turkey, frequently carry out terrorist activities against Turkish targets and interests across the border from Northern Syria. Turkey’s aim therefore is to use the opportunity created by the US’ troop withdrawal from Northern Syria, to ‘neutralize’ Kurdish “terrorists” in Northern Syria. This, in fact, is the main reason for Turkey’s ongoing military activities in Syrian territory.

Central Questions Raised by Turkey’s Invasion of Syria

The main question that arises from the factual situation highlighted above is whether, under international law, Turkey can unilaterally launch military activities in Syria in order to put down what it believes to be terrorist onslaughts against its own national interests across the border from Syrian territory? Put more succinctly, can a State, in International Law, unilaterally use force to enter another state in order to quash what it believes to be terrorist activities directed against it from the territory of that other State? If it can, under what conditions may such interventions be permitted in international law? If it cannot, what are the specific reasons why it cannot?

An Examination of Precedents- The Armed Activities Case (Democratic Republic of Congo v. Uganda)

The questions formulated above have been extensively examined and discussed by the International Court of Justice (the Court or the International Court) in two cases whose facts are somewhat similar to Turkey’s recent intervention in Syria. In the Armed Activities case (Democratic Republic of Congo v. Uganda ICJ Reports 2005), the Court had to decide whether Uganda had breached its obligations under international law when it unilaterally conducted extensive military operations in the territory of the DRC with the aim of crushing the Allied Democratic Force (ADF), a group consisting of dissident Ugandan militants opposed to the Ugandan Government but operating from the territory of the DRC. The Court rejected, outright, the claim of the Ugandan Government that its military operations in the DRC were conducted in self-defense against “armed attacks” from the DRC. Following a rigorous examination of the facts, including a finding that the ADF did not have the backing, and was not acting under the control of the DRC Government, the Court reasoned that the activities of the ADF could not be attributed to the DRC. The DRC could therefore not be held responsible for the actions of the ADF. And since it could not be said that Uganda had been directly or indirectly attacked by the DRC, Uganda’s military operations in the DRC, including its forceful occupation of DRC Towns and Airports, many kilometers from Uganda’s borders, were a brazen violation of international law on the use of force.

At first glance, it may appear that in its majority decision, the Court, in the Armed Activities case, did not make any authoritative pronouncement on contemporary International Law’s position on self-defense against armed attacks by irregular forces operating from the territory of another State. On a closer look however, it is apparent that the Court did not in fact make any pronouncement prohibiting self defense in such cases. Rather, the Court frowned at Uganda’s extensive unilateral military operations in the DRC, the intensity and scale of which could not be said to be solely aimed at crushing ADF forces operating at the DRC-Ugandan border. For the Court, Uganda’s inordinate armed campaign in the DRC, including its unilateral engagement with activities that showed, quite clearly, that it had other ambitions in the DRC beyond its stated aim of crushing the rebel group ADF was against the spirit and letter of Article 2(4) of the UN Charter. Such activities included the advancement of Ugandan armed forces beyond the border deep into Congolese territory, the occupation of Congolese Airports by Ugandan forces, and Uganda’s provision of active support to Congolese rebels opposed to the Government of the DRC. It was an open secret that beyond its touted aim of crushing ADF forces operating in Congo, the Ugandan Government was equally interested in regime change in the DRC.

The conclusion that may be drawn from this is that the Court’s decision against Uganda was mainly predicated on the latter’s obvious disproportionate armed maneuvers in the DRC beyond what was necessary to halt or curtail armed raids across the border. The Court, in this case, was not categorically opposed to self-defense against cross-border armed activities conducted by irregular forces from the territory of another State. The only problem with the majority decision in the Armed Activities case was that, while it did not contain any statement categorically denouncing it, it did not also make a clear and unambiguous pronouncement on self defense against cross-border armed attacks by irregular forces, as one would have expected. Fortunately, what the majority decision did not vociferously and categorically express, Judges Simma and Koojmans did express in their own Separate Opinions in this case. While agreeing with the decision of the Court in the case, Judge Simma, nevertheless, wondered why the Court did not seize the opportunity presented by the case to lay down, in the clearest terms, the extant position of International Law on the controversial issue of self-defense against cross-border armed activities conducted by irregular forces? For him (and Judge Koojmans), armed activities carried out by irregular forces may amount to armed attack within the meaning of Article 51 if they are of such a magnitude or scale that warrants armed countermeasures, provided that such countermeasures are necessary and proportionate. In essence provided that the armed activities in question are on a scale large enough to constitute “armed attack” within the meaning of Article 51 of the UN Charter on self-defense, and the resulting self-defense is necessary and proportionate to counter the armed attack, a State may carry out armed activities (in self-defense) within the territory of another State in a bid to quash cross-border attacks being conducted by irregular forces operating from the territory of that other State. However, where the resulting countermeasures cross the necessity and proportionality boundary, it may seize to be a lawful self-defense. It may even be regarded as an aggression, as Judge Simma described Uganda’s armed activities within the territory of the DRC in this case.

What, in my opinion, remains clearly missing in the ICJ’s Judgment in the Armed Activities case is the issue of consent to countermeasures by the State on whose territory irregular forces are operating from. Regardless of the scale or magnitude of armed activities conducted by irregular, rebel or terrorist forces operating from the territory of a State, any countermeasure aimed at crushing such activities or neutralizing its perpetrators ought to be carried out with the consent of the State. Although, in the immediate aftermath of the coup that removed President Mobutu-Seseko from office, Uganda initially had the consent of the new DRC Government led by President Kabila to station its forces in the border area between the two states in order to prevent cross-border raids into Ugandan territory by Ugandan rebel elements present in the DRC, that consent was later withdrawn directly and indirectly by the DRC Government. Unfortunately, while the Court acknowledged this point, it did not, as one would have expected, go further to categorically stress the importance of continued consent of the State on whose territory irregular forces are operating from throughout the duration of armed activities aimed at uprooting or incapacitating the said irregular forces.

Conducting large scale armed attacks against irregular or terrorist forces stationed on the territory of another State without the express consent of that other State is clearly against the spirit and letter of Article 2(4) of the United Nations (UN) Charter. In its well considered decision in the famous Nicaragua case (Nicaragua v.United States ICJ Reports 1986), the International Court reiterated what is now well established in International Law scholarship, that is, Article 2(4) of the UN Charter is the “cornerstone” of the global collective security system. This provision of the Charter obligates States to refrain, in their international relations, from the threat or use of force against the territorial integrity or political independence of fellow States. Article 2(4) is not a cosmetic provision included in the Charter on frivolous grounds. Still smarting from the horrors of World War II and its devastating impact, the framers of the Charter were deliberate in their choice of wording for Article 2(4). Their intention was to prohibit, in the strongest and clearest terms, any unilateral recourse to force in the settlement of international disputes. As is well known, Article 2(4) of the Charter is not only declaratory of customary international law on the use of force, it is imbued with a Jus cogens character, making it a peremptory norm of international law from which there can be no derogation, except as specified by clear international law rules.

The only exception to Article 2(4) is when a use of force is in self defense. However, such use of force must be conducted within the parameters set out in Article 51 of the UN Charter. A State exercising its right of self-defense under Article 51 must be responding to an armed attack from another State. Where such an armed attack is not directly or indirectly attributable to that other State, but to irregular forces operating from its territory, the consent of that other State must be sought and expressly secured before conducting armed activities (in self defense) on its territory. Outside Article 51 scenarios, it is a blatant violation of international law, and an action that verges on aggression, for a State to carry out armed activities on the territory of another State without the other State’s consent.

Application of the Aforementioned Principles to Turkey’s Armed Activities in Northern Syria

Although an uneasy seize fire has now been negotiated between Turkey and Kurdish fighters in Northern Syria, it is important, for the purpose of maintaining the integrity of the law, to expressly point out that Turkey’s armed activities in Northern Syria in the first few weeks of the present imbroglio, is a violation of international law as enshrined in Article 2(4) of the UN Charter. Its unilateral and inordinate armed activities in Syria, including its extensive occupation of Syrian communities well beyond the Turkey-Syrian border confirms this. In addition, assistance rendered by Turkey to rebels fighting the Assad regime represents a clear violation of its obligations under Article 2(7) of the UN Charter which expressly establishes the principle of non-intervention in the internal affairs of other States. We know this because in the Nicaragua case, the International Court similarly characterized the United States’ assistance to the Contras, a guerilla group working to overthrow the Sandinista Government in Nicaragua, as a breach of its Article 2(7) obligation to refrain from intervening in the internal affairs of another State.

The pertinent question to ask at this point is whether Articles 2(4) and 2(7) of the UN Charter have lost their determinacy in light of Turkey’s flagrant violation of the principles established by both provisions? Certainly not. Turkey’s actions in Northern Syria have been widely condemned by the international community, including, most importantly, the Arab League. The prohibitions against the use of force and unlawful intervention in the affairs of other states are customary international law principles. Any modification to these principles must be evidenced by corresponding state practice on a large scale. This has not happened, and it is not likely to happen in the foreseeable future.