The Turkish Invasion of Syria through the Lens of International Law

By Samuel Brown

The conflict in the Middle East between the Turkish government and the region’s Kurdish population, which has been ongoing since the 1970s, has reached new heights over the past few weeks. The Trump Administration’s decision to pull American troops out of northern Syria, where millions of Kurds live, and Turkey’s subsequent invasion has rocked the international community and called into question both Turkey’s and the United States’ commitment to the international legal system. 

Under Article 2(4) of the United Nations Charter, to which the United States, Turkey, and Syria are all signatories, no state is ever allowed to use force against another state. This principle is at the heart of the peaceful mission of international law. However, the authors of the UN Charter recognized that however desirable the total removal of the use of force from international relations would be, it is not necessarily realistic. As a result, they built into Chapter 7 of the Charter two exceptions to this general prohibition: UN Security Council approval of the use of force and self-defense. It is under the latter that Turkey has chosen to frame its justification for its invasion of Syria. 

If the target of Turkey’s invasion was a state, the self-defense argument would be considerably less controversial (or perhaps, would be controversial for other reasons). However, due to the fact that Turkey is targeting a non-state actor, the Syrian Kurdish population, as well as the fact that there are questions regarding whether or not Turkey has even suffered attacks from Syrian Kurds, there is the very legitimate question regarding whether or not Turkey’s move is legal under international law.

The international legal system, under which all states operate, does not have clear standards regarding the interactions, particularly in war-time (the field of law known as “jus ad bellum”), between states and non-state actors. When attempting to reconcile the actions of non-state actors with the laws of war, steps are usually taken to first, attempt to attribute the actions of the non-state actor to a state and second, to rely on the host state to crack down on the actions. Neither of these steps are likely to occur in this case due to the general chaos that currently exists in Syria as well as the lingering question of whether or not the Kurds have actually committed actions that would warrant these steps in the first place. 

As a result of its inability to justify its use of force through the usual means, Turkey has chosen to invoke the principles of preemptive self-defense, or unilateral actions by a state to remove a non-imminent security threat, and the unwilling or unable doctrine, the idea that if a state is unwilling or unable to control the actions of a non-state actor in its borders that affect other states they give up their right to not have force used on them.

Both of these ideas are very controversial in international law due to the slippery slope that they could create when widely implemented. For example, if the unwilling and unable doctrine was widely applied, if there was a terrorist attack in New Zealand from a terrorist cell based in Australia, then another country would theoretically be able to enter Australia with military force to put down whatever terrorist cell was operating there, claiming that the Australian government was evidently not able to control them.

Although this is an extreme example, it shows that since there is no international body which decides when a state is unwilling or unable to control the actions of non-state actors within its borders, this policy would essentially allow any state to interfere militarily in another state whenever it saw fit to do so. Because of these drawbacks, very few nations around the world have officially accepted the unwilling or unable doctrine and preemptive self-defense as legitimate. As a result, Turkey’s justification for its invasion of Syria is on very shaky legal ground. In fact, it could very easily be argued that since both preemptive self-defense and the unwilling or unable doctrine are not widely accepted, Turkey is breaking international law as it is commonly understood.

Beyond the breaches in international law that Turkey has potentially committed, the invasion of Syria could also cause lasting damage to the diplomatic reputations of both Turkey and the United States. The fact that the Trump administration essentially signed off on Turkey’s plan to invade Syria by withdrawing U.S. troops represents a tacit endorsement of this purposeful flexing, or possibly even breaking, of international laws and norms that serve as the foundation of peaceful relations between states.

Since the end of WWII, the United States has been the chief power in world politics and as such has taken a leadership role in the setting and promoting of international law. This move by the Trump Administration to tacitly endorse Turkey’s invasion is yet another indication that under President Donald Trump, the United States no longer has any interest in setting an example for other nations to follow in the upholding of international laws.

Taken together, the decisions of the United States and Turkey to flout international regulations regarding the laws of war sets a dangerous precedent for other countries and represents the continuing degradation of international norms and customs in both the United States and around the world. 

Photo courtesy of EU Civil Protection and Humanitarian Aid.

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