By Prof. Ibrahim Kaya
A mortar bomb from Syria hit Akçakale on 3 October, taking the lives of at least five Turkish citizens and wounding many others. Akçakale lies on Turkey’s border with Syria and has long been the target for shells and bullets coming from that country. After the Turkish fighter jet was downed, Turkey announced that the rules of engagement had changed and sent various units of the armed forces to the frontier to ensure security. The Prime Ministry put out a statement saying that various positions in Syria had been fired upon.
When one looks at the issue in terms of international law, the first thing that needs to be said is that the bombs which have landed on Turkey directly implicate the Syrian state as responsible. Turkey’s territorial integrity has been violated and there has been damage to people and property in a sovereign area. The principle that actions contrary to interenational law involve the responsibility of the state is an established rule of international law. So the mortar bombs fired on Turkey are Syria’s responsibility, regardless of whether they were fired intentionally or not.
Indeed it is not important who fired them. It is unimportant whether or not they were fired by Assad’s armed forces, militias, or even opponent. Syria as a state is responsible in any event. The officials of this state need to come forward and apologize and carry out their obligation by paying compensation.
A further important issue which concerns international law is the law on the use of force. Article 2(4) of the UN Charter forbids the use of force. It is worth reminding readers that the clause has a wide scope. Apart from conferring powers on the UN Security Council, it contains another exception from the ban on using force and this is the right of legitimate self-defence.
Rights of legitimate self-defence are set out in Article 51 of the UN Charter and force can be used with the aim of legitimate self-defence in the event of an armed attack. Ordinary border incidents which take place only once do not constitute armed attacks but repeated gunfire may be an armed attack, subject to circumstances. If Turkey invokes this right and decides to use it when using force on the grounds that it is defending itself, there are various points which will need to be born in mind. Chief of them is the fact that right of legitimate self-defence must be carried out in a proportionate manner. Clearly, large-scale bombardment and occupation of territory would not fit this description. The destruction of the gun battery which fired the shell and measures to ensure that Turkey was not exposed to this danger again in the future could be described as proportionate. Legitimate self-defence must be carried out without delay. Should an interval of time be allowed to pass and there is no longer a serious possibility of attack, the right to resort to legitimate self-defence disappears.
Another very important aspect concerns the terminology to be used by state officials when there is a resort to the use of force. Official statements must emphasize the concept of defence. In particular the use of terms implying punishment or revenge might make the compliance of the action with international law open to dispute. The terms retaliation and response also contain such a risk.
Under Article 92 of the Turkish Constitution, Turkish troops can only be set to other countries on terms acceptable under international law. Although it might be inferred from the wording of the clause that there is no need for authorisation by the Turkish National Assembly (TGNA) in situations where international agreements (including the provisions of the UN Charter apply), Turkey’s governments have always chosen to obtain a permit to send armed forces to a foreign country from the Assembly on the grounds of shared responsibility and democratic involvement. It is the TGNA which decides whether the situation is one which international law would regard as legitimate or not. Asking the Assembly to endorse a permit for Syria reflects the fact that the decision is not taken simply by the government but is a decision which has to be taken by the country’s legislative organ on the basis of a democratic platform involving wide participation.
Prof. Ibrahim Kaya, USAK