Legality of Turkey's Use of Armed Force Against ISIS for Hostage Rescue

Introduction

This case study concerns the law relating to the use of armed force in the context of the Islamic State of Iraq and the Levant (ISIS). ISIS has managed to gradually take control of different territories in Iraq and Syria, including Mosul, Tikrit, Rawa, Ana and Al-Qaim. The objective behind these actions of the ISIS is to establish a new Islamic State in the region comprising of territories in Iraq and Syria. These actions have prompted the Iraqi Prime Minister Nouri al-Maliki to declare a state of emergency. In 2014, June, ISIS entered the Turkish consulate in the northern Iraqi city of Mosul, and took 49 people hostage including Consul General Öztürk Yılmaz, three children and 16 diplomats. On 6 June, ISIS also abducted approximately 30 Turkish truck drivers. Turkey has so far refused to use armed force to fight ISIS at the time. The issue involved in this case study is whether Turkey could be justified in use of armed force for the purpose of rescuing its nationals abducted by the ISIS. Therefore, the principal focus of this case study is to consider the legality of the use of armed force against ISIS under the circumstances. At the outset it may be mentioned that although principles of non-use of force and of non-intervention have come to occupy an important place in the international law, there are circumstances in which states are allowed to deviate from these principles, including, self-defence and protection of human rights to name two. Therefore, the majority of this case study considers the circumstances in the present situation that may allow Turkey to take exception to the principles of non-use of force.

Legal Issues

The Status of ISIS

One of the important questions that needs to be answered here is whether the status of ISIS is a relevant factor for considering legality of use of force against it. ISIS is not a state, it is a terror organisation and the use of force by states like the US, in Iraqi and Syrian territories is an issue that has become controversial over time. Shwarf has argued that the actions of American forces along with its allies in the war against ISIS points to a paradigm shift in international law with relation to right to use force in self-defense against non-state actors. In the light of Syrian government’s refusal to allow American forces to bomb ISIS held locations in its territory, the use of self-defence by America to justify its actions in Syria marks an important moment in international law, and one that has implications for the present case study. The use of force in self-defence is also particularly interesting in the case of ISIS because traditionally, use of force in self-defence was not considered lawful against non-state actors in a third state unless they are under the effective control of that state. However, in the case of bombing in Syria, the United States has taken the position that if the is unable or unwilling to suppress the threat posed by non-state actors operating within its borders, then the right to self-defence against non-state actors can be used as a justification for action. This view is also supported by Greenwood, who has argued:

“It would be a strange formalism that regarded the right to take military action against those who caused or threatened such actions as dependent upon whether or not their acts could be imputed to a state. There is, however, no reason to think that international law adopts such a formalistic approach. On the contrary, the famous Caroline dispute itself shows that an armed attack need not emanate from a State.”

To recall the Caroline case that is mentioned by Greenwood above, the case involved the action taken by British forces in Canada against merchant vessel Caroline, which was being used by Canadian rebels and some American supporters in attacks against Canada. The Caroline was attacked while on American territory leading to the arrest of Lieutenant McLeod of the British army. The justification taken by the British side, that its forces acted in self-defence was ultimately accepted by the American Secretary of State Daniel Webster, who recognised that the right of anticipatory self-defense could arise in the face of a threatened armed attack, as long as the necessity to take such action was instant, overwhelming, leaving no choice of means and no moment for deliberation.

Therefore, as noted by Greenwood, international law (as indicated by state practice in Caroline case) does not adopt a formalistic approach, which allows the state to take action only against state actors. This view is also supported by the UN Security Council, and that too in the context of non state actors involved in terrorism activities. SC Resolution 1373 (2001) clearly notes that there is an ‘inherent right of individual or collective self-defence as recognised by the Charter of the United Nations’. SC Resolution 2178 (2014) specifically mentions Islamic State in Iraq and the Levant (ISIL) and the Al-Nusra front and other affiliates of Al-Qaida to affirm the threat posed by terrorism to international peace and security. Furthermore, SC Resolution 2249 (2015) calls on states to use force against ISIL by exercising their right to self-defense if its prerequisites are given or to urge states hosting ISIL to give their consent to armed operations on their territory if self-defense cannot be invoked.

Considering the state practice and the UN Security Council resolutions discussed above, it may be argued that legality of use of force against ISIS can be justified even if it is not a state actor.

Armed Conflict

The next point to be considered here is the meaning of armed conflict for the purpose of legality of use of force. Armed conflict has been defined as the use of armed force between two organised armed groups, at least one being the government of a state, resulting in least 25 battle-related deaths annually. Therefore, there is an inclusion of the state as one of the parties to the armed conflict. Armed conflicts in the recent past, especially those involving organisations like the ISIS on one hand, are more complex in nature. There is also the development of the concept of non-state armed conflicts as well as conflicts that involve one-sided violence (terrorism), which need to be considered. In the light of these developments, non-international armed conflict has been defined to mean conflicts that involve fighting between the regular armed forces and identifiable armed groups, or between armed groups fighting one another on the territory of a state, provided also that the fighting is of a “certain level of intensity and extend over a certain period of time”. In Case Concerning the Military and Paramilitary Activities in and against Nicaragua (Nicaragua v. United States of America), armed attack has been defined as ‘not only action by the regular forces of a foreign state across an international border but also sending by or on behalf of a state of armed bands, groups, irregulars or mercenaries, which carry out acts of armed force against another state of such gravity as to amount to an actual armed attack carried out by regular forces.’

Use of Force

The principle of non-use of force has come to be enshrined in UN Charter itself as an important principle of international law. Article 2(4) of the UN Charter provides a duty on all State Parties to refrain from threat or use of force against the territorial integrity or political independence of any other state. Although this principle is a part of the UN Charter, the Charter itself can be used to justify use of force under certain circumstances. First, humanitarian crises in different countries like Rwanda, former Yugoslavia and Syria have developed a need to consider a midway between the tensions between prohibition of use of force and respect for human rights. This midway has involved the use of some interventionism on the basis of humanitarian causes as seen in the use of force by NATO in Kosovo and the authorization of use of force in East Timor by the UN Security Council. Although the present situation does not relate to Turkey’s use of interventionism for humanitarian purposes in Syria, it is useful to know the range of exceptions that are allowed to divert away from non-use of force. Indeed, with reference to threats from terrorism, American actions in the ‘war on terror’, has already signified departure from settled principles on international law on prohibitions of interventions and use of force as a major part of state practice.

In this present situation, self-defence may form a justification for use of force by Turkey. Self-defence is a controversial area but Article 51 of the UN Security Council does provide the basic framework which can be considered here. As per Article 51, states have the “inherent right of individual or collective self-defence if an armed attack occurs against a Member of the United Nations, until the Security Council has taken measures necessary to maintain international peace and security. Measures taken by Members in the exercise of this right of self-defence shall be immediately reported to the Security Council and shall not in any way affect the authority and responsibility of the Security Council under the present Charter to take at any time such action as it deems necessary in order to maintain or restore international peace and security.” UN Security Council Resolutions 1368 (2001) and 1373 (2001) also support the contention that states can have the right to self-defence in the event of terrorist act.

The 1970 Declaration of Principles in International Law clarifies the interpretation of Article 2(4) of the UN Charter. As per this Declaration, use of force constitutes wars of aggression are crimes against peace, violation of frontiers to solve international disputes, reprisals involving the use of force, deprivation of right to self-determination, organising, instigating assisting or participating in civil war. The question is whether the use of force against ISIS will be considered illegal use of force as per this interpretation. This is considered in some detail in the following section.

The legality of the use of force to rescue nationals in another country

International law scholarship does recognise the right of a state to use armed force as a response to an armed attack regarding the protection of nationals residing abroad. Thus, action involving use of force may be taken by a state as a response to failure of the host state (in this case Syria) to protect nationals, imminent threat to the nationals, and the military action is limited to the rescue of the nationals. There is considerable state practice to justify the use of force under such circumstances. The Entebbe hostages (Israeli mission in Uganda, 1976) is an example. With respect to Iraqi territory under ISIS control, action on this territory is subject to the consent of the Iraqi government. The 1970 Declaration of Principles in International Law provides that no state’s territory shall be object of military occupation resulting from use of force. Moreover, territorial acquisition resultant of use of force is not to be recognized as legal. Therefore, there is no issue in this context.

Turkey may even be justified in the use of force against ISIS in Syria based on the ‘last resort’ criteria, which allows states to take action after other options have been explored and tested. The criteria is that every diplomatic and non-military avenue for the prevention or peaceful resolution of the humanitarian crisis must have been explored’ or ‘there must be reasonable grounds for believing that ... if the measure had been attempted it would not have succeeded before the state chooses to exercise options involving use of force. In this context, Syria’s unwillingness or inability to take action against ISIS can be used as a justification by Turkey to protect its own nationals. It may be noted that there is state responsibility with Syria as well as per ILC Articles on State Responsibility, Article 16 provide that a state which assists or aids another state in the commission of internationally wrongfully acts is also responsible for such acts under international law.

Conclusion

To conclude this case study, the present law and state practice related to use of force indicates that there is justification for Turkey’s use of force against ISIS in Iraq and Syria for the abduction of its nationals.

Bibliography

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