The US-backed Turkish operation in Syria has created an international armed conflict

Defense Secretary Ash Carter meets with Turkish Defense Minister Fikri Işik during a United Nations Peacekeeping Ministerial Meeting at Lancaster House in London, Sept. 8, 2016. DoD Photo by Air Force Tech. sergeant. Brigitte N. Brantley

Last week, I wrote that three recent developments involving US military forces in Syria could trigger an “international armed conflict” between the US (and its co-belligerents) and Syria (and its co-belligerents). I have discussed why these actions might satisfy even a narrow legal view of what it takes to start such an armed conflict. Of course, a broader legal view – a position that is notably that of the International Committee of the Red Cross – would make this case even easier. Does this subject – that an international armed conflict already exist in Syria – have important implications for a whole range of military actions (just take a look at the useful Publish at EJIL talk tomorrow).

I want to go deeper into one of the elements of this analysis: Turkey’s incursion into northern Syria…Operation Euphrates Shield.

I am motivated to elaborate on this point, in part, because of a critical of Professor Deborah Pearlstein at Legal opinion, in which she expresses a major doubt about my analysis. I believe Deborah’s criticism is unfounded. She writes:

“[T]The Turkish operation was, like all reported US operations in Syria, aimed (in different ways) at various non-state actors in theater. And while Syria expressly objected to Turkey’s operation, I found no mention of Syria’s objection to the US role in the operation. In any case, there is no indication that Turkey or US forces engaged in hostilities against Syrian forces in these operations.

Let’s break this analysis down.

First of all, does the Euphrates Shield trigger an “international armed conflict” within the meaning of Article 2 common to the Geneva Conventions, which, by definition, includes “all cases of partial or total occupation of the territory” from another state?

Facts:

(1) Turkey is said to have effective control (established and exercised authority) over several villages and towns in northern Syria. A Turkish military officer Recount CNN, “The Jarablus-Azaz line is completely under the control of the FSA (Free Syrian Army) supported by coalition forces.” To get an idea, the territory under Turkish control would include a land mass similar in size to Rhode Island and would now be home to a population in the tens of thousands (see chart by Turkish Anadolu agency).

Photo by Anadolu Agency

(2) Turkey’s operation met with strong public objections from the Syrian government. Damascus sentenced the operation as a “flagrant violation of sovereignty” and called on the UN to “put an end to this aggression”. To say the least, the intervention does not have the consent of the territorial state.

The law:

What plausible argument is there that this situation does not constitute occupation, even under the most conventional interpretation of the law on this subject?

Deborah writes “there is no indication that Turkey or U.S. forces engaged in hostilities against Syrian forces in these operations.” But the clear text of Article 2 of the Geneva Conventions states that it applies “even if the said occupation meets with no armed resistance”.

Deborah also writes that the operation is “targeted (in different ways) at various non-state actors in the theatre.” But it doesn’t matter why Turkey is occupying parts of Syria. Even in the debate between Professors Adil Haque and Terry Gill on the general question of when CT strikes on the territory of another state constitute an international armed conflict, Terry acknowledges (as anyone would, I think): that would change deal and would trigger the TSI regime. Notably, Adil and Terry speak of a situation much like the Euphrates Shield – where “one state had to step in and take control of another state’s territory, whether government-controlled or government-controlled.” an armed group until the state moved that control and replaced its own. In other words, both Terry (a strong proponent of the narrow legal perspective I mentioned at the start) and Adil (a strong proponent of the broader perspective) agree that this “would clearly constitute an IAC [international armed conflict].”

Second, is the United States co-belligerent with Turkey in these operations? Before answering this question, for many reasons, it is important to point out that the United States has explained that it does not support any Turkish strikes against the Syrian Kurds. But what about the general operation to take control of these areas of northern Syria? Some of the best legal analyzes of the actions that constitute co-belligerency in contemporary conflicts are just securityby Nathalie Weizmann (see here, here and here). Operation Euphrates Shield seems like an easy call on that legal front. Gen. Joseph L. Votel, Commander, US Central Command, declared that the United States coordinated with Turkey beforehand and provided “air support for operations in Jarablus.” Pentagon Press Secretary confirmed that the US military conducted airstrikes in support of the operation. If you’re still not convinced, read this ABC News report—“U.S. Special Operations Forces Work With Turks In Syria In Fight Against ISIS”– including references to public statements by Captain Jeff Davis, a Pentagon spokesman.

Let me conclude with three brief points.

First, while Turkey and the United States are not parties to Additional Protocol I to the Geneva Conventions, guess who is: Syria and its partner in crime, Russia. As a matter of treaty law, the Protocol – and its treaty-based prohibitions and attribution of war crime status to actions such as the bombing of hospitals and indiscriminate attacks affecting the civilian population – only applies if Syria is in an international armed conflict.

Second, one of the most complicated legal questions is whether Syrian (and Russian) strikes in other parts of the country would have a sufficient “connection” to the international armed conflict (for example, the armed conflict created by the Euphrates Shield or the other recent hostilities I described in my previous post). Turkey is reportedly working with the Free Syrian Army in northern Syria (e.g. quote above to CNN). One question is: would Assad’s attacks elsewhere in the country against this armed group and against civilians who support the group have a sufficient connection to the international armed conflict with Turkey?

Third, if Turkey is indeed engaged in an occupation of parts of northern Syria, Ankara must now comply with a host of legal obligations under the Fourth Geneva Convention as an occupying power. This raises a final question: which of these obligations apply to Ankara’s co-belligerents?