Turkey’s potential military operation in Syria’s Afrin: A Legal Analysis

Syria’s continuing failure to halt the large-scale outpouring of refugees across international borders and, more importantly, to prevent cross-border terrorist attacks originating from its territory, is indicative of Assad’s inability or unwillingness to take action to protect the rights of other states.

According to the International Court of Justice, states are obliged not to knowingly allow their territory to be used for acts contrary to the rights of other states. This obligation is recognised as a basic principle of international law that applies to all activities inflicting—or having the potential to inflict—severe damage to the rights of other states.

The failure of the Assad regime to comply with its obligations impedes the Turkish government’s ability to maintain a stable and secure environment for its population, and leaves the country vulnerable to terrorist attacks. The question in the case of Syria, therefore, is as follows: does the omission—or the complete failure—of the Assad regime to fulfil its duty to take appropriate preventive measures, in full knowledge of the situation, entitle Turkey, on its own initiative, to act in Syria?

The Turkish Armed Forces (TAF) launched Operation Euphrates Shield in August 2016 to clear Daesh militants from its southern border region and stop the advance of the PYD/YPG, the Syrian branch of the PKK, which is considered a terrorist group by Turkey, the US and the European Union.

The operation lasted seven months, and resulted in the Turkish-backed Syrian opposition regaining control of the Al Bab-Azaz-Jarabulus triangle, thereby wedging itself between two PYD controlled areas. By virtue of this military operation, Turkey’s national security concerns were alleviated. Daesh is presently not in the region, and the risk of unification between the PYD/YPG-held areas alongside the entire Turkish border has been halted.

In addition, more than 100,000 Syrian refugees have already returned to this liberated triangle from Turkey, which currently hosts 3.4 million Syrian refugees—more than any other country.

Post-conflict reconstruction and humanitarian aid provided by Turkey have ensured the security of these areas and helped return life to normal.

Turkey’s second major incursion into Syria during the Syrian civil war, in October, was aimed at putting a halt to fighting between local armed groups in Idlib—a city of four million people—and implementing a de-escalation zone as agreed upon during the Astana peace talks by Turkey, Russia and Iran.

Re-imposing security in Idlib and northwestern Syria is of primary importance for Ankara in order to avert a possible influx of refugees into Turkey, and perhaps even to facilitate the return of previously displaced persons.

Unending hostilities and instability in Syria have created a breeding ground for radical political movements and terrorism, from which Syrian civilians have fled. Large-scale refugee outflows and trans-border terrorist attacks originating from Syria have inflicted severe damage to Turkey’s security and its social, political and economic stability.

This has had destabilising consequences throughout the region, and internationalises what might otherwise be a purely internal issue.

Turkey’s military presence in northern Syria should be assessed accordingly, as its goals are to keep at-risk civilians within their own country by eliminating their security concerns, and to preserve its national interests against terror groups.

After the Idlib operation, and as part of Turkey’s plan to prevent the emergence of a “terror corridor” alongside the whole Turkey-Syria border able to reach the Mediterranean Sea and keeping the PYD/YPG in the eastern Euphrates, Turkey’s President Erdogan pointed to a probable military operation in Afrin, an area adjacent to Idlib and currently held by PYD/YPG. Such an operation would be significant not only for Turkey’s national interests of protecting its 911 km border with Syria from becoming wholly controlled by a non-state armed terror group, but also for Syria’s territorial integrity, by not allowing a separate entity to emerge in northern Syria under PKK tutelage.

The existence of terrorist groups, particularly the PKK’s Syrian wing the YPG, alongside its border with Syria poses a serious threat to Turkey. The Henry Jackson Society, a UK-based think tank, for instance, has outlined that the PKK and YPG “are organically integrated components of the same organisation—sharing membership, ideology, and a command structure."

Despite this, while the PKK has been widely considered a terrorist group, the YPG has been treated differently for several reasons. I do not aim here to elaborate on these reasons, but the most evident one is that instead of deploying their own troops, international actors have found it politically, economically and legally much more attractive to make use of such local proxies on the ground for their own agendas.

If a state fails to take appropriate preventive measures when large-scale refugee outflows originate from its territory and non-state actors use its territory to launch attacks against other states, it must expect consequences, including extraterritorial exercises of countermeasures by the injured state.

Today’s predominant view is that forceful countermeasures are prohibited under international law. Nonetheless, one should not underestimate the minority view that was expressed by Judge Simma in the Oil Platforms case. Accordingly, an injured state, which is the target of an offensive hostile action not reaching the threshold of an armed attack within the meaning of Article 51 of the UN Charter, may resort to strictly proportionate defensive military measures.

Based on this view, one may argue that in the context of terrorist attacks originating from Syria and the ever-growing number of Syrian people knocking on Turkey’s door, the limited temporary intervention by the Turkish military into northern Syria in order to eliminate security threats from which Syrian civilians flee, must be tolerated by the Assad government so long as it is unable and/or unwilling to act.  In other words, if Syria does not have the means at its disposal to perform its obligations to prevent trans-border security threats and refugee outflows originating from its territory, then it must allow Turkey to do so.

Furthermore, it is increasingly accepted by the international community in the wake of the attacks of 9/11 in the US, when the host state is unable or unwilling to prevent its territory being used as a base for launching attacks against the victim state’s territory, the victim state enjoys the right of self-defense to adopt proportionate and necessary defensive measures on the territory of the host state.

A pre-declared, but not yet realised military operation by Turkey into Afrin, may also be considered in this regard, if it is carried out as a response to an imminent attack against Turkey by the YPG.