By Prof. İbrahim Kaya
According to the statement issued by the Turkish Prime Ministry, following the firing of a mortar bomb at Akçakale five Turkish citizens lost their lives and some positions in Syria were struck by artillery fire from Turkey.
Akçakale lies on Turkey’s frontier with Syria and has long been a target for bullets and bombs from Syria. After the downing of the Turkish jet, it was felt that the rules of engagement had altered and various units of the armed forces were sent to the Syrian border to ensure security. When Turkey was struck by a mortar bomb from Syria and subsequently opened fire itself, a number of issues of international law came onto the agenda.
Looking at the affair from this angle, it must first be stated that when mortar bombs fall on Turkey, they do imply responsibility by the Syrian state. Turkey’s territorial integrity has been violated and damage has been done to people and property in the area where it has sovereignty. It is an established rule of international law that actions against it imply the responsibility of the state concerned. So regardless of whether it was intentional or not, the bombs dropped on Turkey are the responsibility of Syria. What is important here is that an action contrary to the law has taken place. It is unimportant whether it was intentional or not. It is sufficient that what has been done has happened. An action contrary to international law is one which infringes upon either the rights of another state or the rights of the entire international community. Here the outcome is not very important. Even if the result of the action had not been to cause damage, Syria would still not escape responsibility.
Another point to do with responsibility is that any illegal aspect of the attack can be ascribed to the Syrian state. It does not matter who actually launched the bombs. Under normal conditions an action by a state’s forces are attributed to that state. To put it another way, an attack by official sources linked to the regime are accepted as attacks by the Syrian state and imply the responsibility of this state. Thus the statement from the Prime Ministry states that the shell that was fired was fired by the Syrian regime. Actions by militias even if they do not operate openly wearing the uniform of the state are nonetheless ascribed to it and imply its responsibility. Indeed even forces fighting against a country’s regime are considered to come under its area of responsibility. The Syrian state is also responsible for the actions of its opponents. Should the opposition come to power, this responsibility continues. In any case, as a sovereign state, Syria is responsible. This requires the state’s officials to come forward and accept their responsibility and do what is required of them as their responsibility, in terms of apologies and compensation.
Turkey should urgently make an appeal of this sort to Syria and keep the international community informed on the subject. The activities of the Foreign Ministry indicate that Turkey is indeed making efforts to do exactly this. Another very important question concerning international law is the right to use force. Under Article 2(4) of the United Nations Charter, the right to use force is prohibited. The clause makes it forbidden for a state to use force against the territorial integrity or political independence of another. It is not only the use of force which is forbidden but also threats to use it. It is worth reminding readers that the scope of the Article is very wide. Virtually every action involving the use of force can be considered within the context of it.
Two Exceptions Regarding the Use of Force
Within the UN system two exceptions exist regarding the use of force. The first of these is when the Security Council is empowered to act. When international peace and security are endangered or break down, this power may be granted. It is also the Security Council which determines when this has occurred. This power was used in Korea in 1950 and again in Iraq in 1991. It might be argued that there are regional repercussions of Syria’s civil war and that they endanger peace and security in the region. However a veto by two permanent members of the Security Council, China and Russia, has until now prevented the adoption of any resolution containing a reference to the use of force in Syria. Apart from authorizing the Security Council to do so, another exception relating to the use of force is the right to legitimate self-defense. Legitimate self-defense is regulated by Article 51 of the UN Charter which says that force may be used with the aim of self-defense in the event of an armed attack. The country which is the target for the attack may use force with the aim of legitimate self-defense, either by itself or with its allies. The article lays down that the Security Council must be informed of the situation and that force may be used for legitimate self-defense until the Security Council can take the necessary measures. The UN system can be said to outlaw the use of violence in all cases other than these two circumstances.
A retaliatory response is a term which in legal literature refers to both retaliation and methods of responding by causing damage. Sometimes the expression retaliation is used for both of them. Retaliation basically refers to the carrying out of an action by a state in conformity with law against another country in order to respond to a hostile action by it. Measures considered in this connection are ones such as the severing of trade links or the imposition of visa requirements for the citizens of particular countries. Responding by causing damage means responding to an illegal action by another state with a method prohibited by international law. Under ordinary conditions, it could be argued that the prohibited response loses its illegality because the state that acted first violated international law and the response is carried out in order to force it to conform to it. The way in which the application of international treaties is halted could be cited as an example. It should be born in mind that Article 2(4) of the UN Charter forbidding the use of violence is today a binding rule and according to the prevailing view in the legal literature measures are not to be taken which involve the precautionary use of violence. In the same way, the Declaration on Friendly Relations 1970 prohibits relation involving the use of force.
Simple border clashes which happen only once do not constitute an armed attack, but repeated firing may be described as an armed attack, subject to various conditions. Consequently it may open the way to the right to use force as legitimate self-defense. The bombardments of Turkey by Syria may be interpreted as giving rise to the right to legitimate self-defense especially if the Syrian state does not accept responsibility and do what is necessary. By bombing positions in Syria Turkey has demonstrated that it has arrived at an interpretation along these lines.
The right of legitimate self-defense must be used in a proportionate fashion. It is clear that under existing conditions large scale bombing and occupation would not qualify as this. What might be described as proportionate would be the destruction of the battery which fired the mortar bomb and strikes against limited targets linked to measures to prevent Turkey being exposed to a further attack of this kind. Retaliation is sometimes used as “responding; or giving a proportionate response in order to emphasis this aspect, but doing so contains a risk of invoking an appeal which does not depend solely on the right to legitimate self-defense. Legitimate self-defense must be carried out without losing time, i.e. instantly. If a period of time is allowed to pass and the probability of an attack diminishes, this may remove the right to use self-defense entirely. It only applies when there is no other method available other than to use force for self-defense or the means currently being used are not producing any results. The terminology employed in the statement from the Prime Ministry shows that these aspects have been born in mind.
Options under Turkish domestic law
Looking at the bombing in terms of Turkey’s domestic legislation: the right to use force is regulated under Article 92 of the Turkish Constitution. This Article stipulates that Turkish troops can only be sent to another country in cases which conform to international law. Although the wording of the article makes it possible to claim that in situations where it is required by international treaties, including the provisions of the UN Charter, there is no need for the Turkish Grand National Assembly (TGNA) to authorize this, seeking shared responsibility and democratic participation, successive Turkish governments have always preferred to send armed troops to other countries only by obtaining authorization from the Assembly. This being so, the TGNA is in a position to decide whether the case constitutes one which international law considers legitimate. Peace-keeping operations like ISAF in Afghanistan and UNIFIL in Lebanon have been reviewed in this connection. So if an authorization involving Syria is accepted by the Assembly, this reflects the idea that the decision is not simply accepted by the government but also by the country’s legislative organ on a platform involving broad democratic participation.
There are various points to which Turkey should pay attention at this stage. Official statements must conform to the language of the UN Charter. Because the terms of warfare are completely forssed that bidden, they should be excluded. It needs to be added here that Article 92 of the Turkish Constitution uses the expression ‘war’ in a way which is not in conformity with the UN Charter and this point needs to be reviewed when the new constitution is being drafted.
No matter how important national security and national interests may be, the stress must be laid, parallel to the UN Charter, on the fact that Syria’s actions have violated Turkey’s territorial integrity and sovereignty. Firstly terminology referring to expressions about punishment or vengeance could raise issues about compliance with international law. Above all Turkey must declare that it is resorting to self-defence making exceptional use of its right to do so. The magic word is defense. Statements on other matters, such as retaliation and making a response, even if they are partly defensible, could make its position debatable under international law. This is why countries like the USA, Britain, and France have always explained their use of force by invoking the concept of defense. Concepts like retaliation and giving a response are frequently used by Israel in the Middle East and they are always immediately associated with actions contrary to law.
Prof. İbrahim Kaya, USAK