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How Turkey’s Potential Afrin Push Measures Up Against International Law

Turkey recently announced plans to possibly launch an operation on a Kurdish-held enclave in northern Syria. Jasper Finke, a lecturer in international law, assesses whether there is a legal justification for Ankara’s potential operation.

Written by Lars Hauch Published on Read time Approx. 5 minutes
Turkish president Recep Tayyip Erdogan arrives at the Elysee palace in Paris for a meeting with his French counterpart on January 5, 2018. Geoffroy Van der Hasselt/NurPhoto via Getty Images

President Recep Tayyip Erdogan announced this week a possible operation against Kurdish militias in northern Syria, but the legality of a Turkish offensive on Afrin is debatable in terms of international law, Jasper Finke, a lecturer in international law at the University of Edinburgh Law School, told Syria Deeply.

International treaties are not equipped to deal with conflicts between states and nonstate actors, he explained. “The Syrian conflict illustrates that the classical understanding of security concepts hardly works in contemporary conflicts,” said Finke.

The potential attack on Afrin is a case in point. Erdogan on Sunday said that any operation would be an extension of Turkey’s 2016 Euphrates Shield Operation, which targeted the so-called Islamic State and the People’s Protection Units (YPG), a Syrian Kurdish militia. However, ISIS has largely been cleared from the area.

Turkey views the YPG and its political wing – the Kurdish Democratic Union Party (PYD) – as an extension of the Kurdistan Workers’ Party (PKK), a designated terrorist group that carried out a number of attacks inside Turkey in recent years.

Ankara has leveraged PKK attacks inside Turkey to justify its past cross-border military operations in Syria, invoking Article 51 of the United Nations Charter, which stipulates that a state has an inherent right to self-defense against an armed attack.

In light of Ankara’s plans to attack Afrin, Syria Deeply speaks to Finke about whether the operation and Turkey’s other maneuvers in Syria are legal under international law and whether Article 51 of the U.N. Charter is applicable.

Syria Deeply: Is the possible Turkish offensive on Afrin lawful under international law?

Jasper Finke: When it comes to Article 51, nothing is clear. Especially since 9/11, there is an ongoing discussion about the limits of the right to self-defense and in what situations it can be invoked. In that regard, the question of which acts constitute an “armed attack” is particularly controversial. The U.N. Charter was designed to manage conflicts between sovereign states. When we talk about attacks conducted by nonstate actors like the PKK and ISIS, there is a wide scope for interpretation. A valid indicator to classify the attacks as “armed attacks” would be to assess if those attacks follow a military strategy: Do they target military institutions? Are they conducted in a military way?

Syria Deeply: In 2015, the PKK and affiliated groups targeted Turkish military facilities, convoys and police institutions. However, not everyone agrees with Turkey’s claim that the Turkish PKK, the Syrian PYD and YPG can be considered as a single entity. Can Turkey thus target the YPG even though the PKK claimed the attacks in Turkey?

Finke: This is a question of evidence. If one assumes that the Turkish state can provide evidence that the leadership of the groups based in Syria consists of well-known PKK members, they have a strong argument for measures against a region like Afrin, even if individual attacks within Turkey have not been planned in that very region. However, the principal right to take forceful measures against an organization does not give the Turkish state a free ticket. Anything that comes close to occupation is off limits.

Syria Deeply: The Turkish army operates three military settlements, and some armed opposition factions are dependent on Ankara’s support. The Turkish army has effectively established control over an area of roughly 2,225 square kilometers (859 square miles). Would a Turkish-led offensive on Afrin run the risk of being seen as occupation?

Finke: Turkey could claim that its continuing presence is necessary to prevent terrorist organizations from reinvigorating. Yet, such an argumentation would stretch the idea of the U.N. Charter’s right to self-defense considerably.

The Syrian conflict illustrates that the classical understanding of security concepts hardly works in contemporary conflicts. We can talk about self-defense and terrorism, but the U.N. Charter and the right to self-defense in particular were initially designed to manage inter-state wars. To solve the problem of cross-border threats of terrorism, Turkey would actually need the cooperation of either the Syrian state or the U.N. Security Council. Obviously, neither is working. That is why Turkey pulls up the by-now untrammeled right to self-defense that simply hasn’t been designed for such a situation.

Syria Deeply: Other experts have argued that the Syrian government must allow Turkey to intervene temporarily as long as it does not have the means at its disposal to perform its obligations to prevent trans-border security threats. How does this argument fit into international law, if at all?

Finke: Such an argument points to the concepts of either humanitarian interventions and the Responsibility to Protect (R2P) or the so-called unwilling or unable state. The former became popular in the aftermath of the atrocities in Rwanda and with respect to the Kosovo war but never evolved into universally accepted doctrine or institutionalized U.N. norms. These approaches are highly disputed and have been, sloppily speaking, a fabrication of the intervening NATO states at that time. Whatever the underlying intention, they run the risk of undermining the overall aim of the U.N. Charter, and that is to restrict the right to conduct military interventions. The same applies to the concept of an unable or unwilling state. Even if a state is unable to suppress terrorist threats, this does mean that other states can use force against this state. It might be obliged to tolerate the use of force against terrorists on its territory. But that also opens the door and invites possible abuse.

Syria Deeply: You said that occupation is off-limits in any sense. Could Turkey avoid crossing that line if it claims its intervention is temporary?

Finke: There is no clear answer to that question, but the simple existence of a terror threat does not represent a substantial line of argumentation for continuing military presence in a sovereign foreign state. According to the current legal situation, it is not permitted to go after a terror organization until it has been finished completely – an undertaking that is arguably doomed to failure anyway. That brings us back to the notion that the U.N. Charter, including the right to self-defense, was designed to manage inter-state wars.

Syria Deeply: Would the legality of an operation in Afrin differ from Turkey’s operations in Idlib and western Aleppo, where Ankara claims its observation posts were set up to monitor the Astana de-escalation zones?

Finke: That depends on the size and usage of these observation posts. As long as their purpose is to secure the local de-escalation zone the intervention cannot be considered as an occupation. However, if their usage goes beyond a defensive direction, that justification becomes invalid.

The answers have been edited for length and clarity.

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