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Article Excerpt
[In October 2007, a series of cross-border attacks by Kurdistan Workers' Party fighters operating from inside northern Iraq led Turkish authorities to launch (unauthorised) military operations in Iraqi territory. The present article analyses to what extent this intervention--largely ignored by the scholarly community--can be reconciled with the international law on the use of force (the jus ad bellum). Taking account of the reactions of the international community, it also examines the possible impact of the incident on the customary boundaries of self-defence. In this context, it is argued that the intervention adds to the growing evidence in state practice supporting a more flexible construction of self-defence against attacks by non-state actors. On the other hand, the lack of explicit legal justification on behalf of Turkey and the generally muted reactions of third states make it difficult to identify relevant opinio juris. The implication is that the incident ultimately does little in terms of reducing the existing legal uncertainty regarding the ratione personae aspect of the 'armed attack' requirement of art 51 of the Charter of the United Nations.]
CONTENTS I Introduction II A Reconstruction of the 2007-08 Intervention A The Run-Up to the Intervention B The Reaction of the International Community III The Legality of the Intervention A Legal Framework B The Turkish Intervention and the Right of Self-Defence 1 Procedural Obligations 2 Gravity of the Attacks 3 Self-Defence against Attacks by Non-State Actors: The Nicaragua Standard 4 Self-Defence against Attacks by Non-State Actors after September 11 5 Necessity and Proportionality IV Concluding Remarks
I INTRODUCTION
On 7 October 2007, a group of Kurdistan Workers' Party ('PKK') militants ambushed a Turkish commando in Turkey's south-eastern Sirnak province, killing 13 soldiers and wounding three. (1) The incident took place against a general background of increased Kurdish separatist violence and triggered a wave of public outrage across the country. When, four days later, another cross-border attack resulted in the killing of 12 soldiers and the capture of eight others, the Turkish Government gave the green light for military operations inside Iraqi territory. Initially, actions were confined to aerial bombardments and artillery raids against PKK positions, as well as relatively small-scale operations by Turkish commandos. (2) Fearing that a Turkish ground operation would jeopardise the stability of one of the rare peaceful parts of Iraq, the United States, together with the Iraqi government and other members of the international community, urged Turkey to pursue a diplomatic solution. Nonetheless, on 21 February 2008, Turkey launched its biggest offensive in a decade on PKK bases inside Iraq, deploying several thousand troops, supported by aircraft and artillery. (3) While the operation was denounced by the Iraqi Government and the Kurdistan Regional Government ('KRG'), the international community generally adopted a passive, condoning posture. By the end of February, most Turkish troops were again withdrawn, albeit that air strikes have continued in subsequent months. (4)
The present article offers a case study of Turkey's military intervention in northern Iraq in 2007-08--a conflict largely ignored by the scholarly community--from the perspective of the international law on the use of force (the jus ad bellum). On the one hand, it tests the Turkish operation against the existing rules on the inter-state recourse to force, inter alia by scrutinising the necessity and proportionality thereof. At the same time, taking account of the reactions of third states, it examines the possible impact of the incident on the customary boundaries of the right of self-defence. Indeed, as the International Court of Justice recognised in the Nicaragua case, (5) the rules on the use of force are not static rules: '[r]eliance by a State on a novel right or an unprecedented exception ... might, if shared in principle by other States, tend towards a modification of customary international law'. (6) In casu, the de lege ferenda aspect is particularly relevant in relation to the 'armed attack' requirement of art 51 of the Charter of the United Nations, or, more precisely, in relation to the ongoing controversy regarding the exercise of self-defence against attacks by non-state actors.
Part II of this article briefly describes the run-up to the intervention in northern Iraq in 2007-08 and the reaction of the international community. Part III deals with the legality of the operations under international law and their possible impact on the customary rules on the use of force. Part IV concludes with some final observations.
II A RECONSTRUCTION OF THE 2007-08 INTERVENTION
A The Run-Up to the Intervention
The latest stage in the recurring conflict between the Turkish military and the PKK (7) can be traced back to a series of events post-1999. (8) After more than 15 years of armed conflict in the predominantly Kurdish regions in south-eastern Turkey, with an estimated death toll of some 37 000 people, the Turkish military had come close to defeating the PKK in the late 1990s. (9) The separatist group, once numbering between 10 000 and 20 000 fighters, had been reduced to a containable nuisance. (10) The carefully orchestrated capture of the PKK's founder and unquestioned leader, Abdullah Ocalan, in 1999, seemingly delivered the coup de grace. (11) Continuing to head the organisation from his jail on the isle of Imrali, Ocalan set about a radical transformation of the PKK. He declared a unilateral ceasefire and ordered the remaining 3000 to 3500 fighters to retreat and regroup in northern Iraq. As for the PKK's political agenda, Ocalan gave up the ambition of an independent Kurdistan, instead declaring that the PKK would strive for equal rights for Kurdish citizens and the release of imprisoned PKK members.
The resulting calm did not last long. The limited accommodation of Kurdish demands and the lack of prospect of political participation led Kurdish activists to reconsider their options. In 2004, the unilateral ceasefire was ended. By that time, Turkish Kurds had also gained courage from the developments within Iraq, where their Iraqi brethren had acquired regional autonomy under the auspices of the KRG. (12) This evolution flared up the ambitions of the Turkish Kurds by providing them with a suitable model of autonomy. It also made it easier for the PKK to use the mountainous border region in northern Iraq as a logistical base from which to mount cross-border raids into Turkey.
After 2004, separatist violence intensified rapidly, claiming over 1500 lives in a period of a few years. (13) As a result, Turkish authorities grew increasingly frustrated at the lack of action undertaken by Iraqi and US forces against PKK fighters on Iraqi soil. Even though the two main Iraqi Kurdish factions, the Patriotic Union of Kurdistan ('PUK') and the Kurdistan Democratic Party ('KDP'), had assisted Turkey in combating the PKK in the mid-1990s, and even though both groups had promised to eliminate all PKK bases in the areas under their control in the 1999 Washington Accord, (14) neither took credible steps to dismantle PKK activities after the 2003 US intervention. The Iraqi Kurds' relationship with the PKK remained one of uneasy coexistence. On the one hand, Iraqi Kurds were keen on retaining their preferential position in the Iraqi constellation and on maintaining positive trade relations with Turkey. (15) On the other hand, they remained broadly sympathetic to the struggle of the Turkish Kurds and arguably regarded the PKK as a bargaining chip to pressure Turkey over the disputed status of the oil-rich region of Kirkuk. (16) The US was reluctant to push the Iraqi Kurds too hard because it needed their support for the Iraqi coalition. (17) While the US--like the European Union--qualified (and qualifies) the PKK as a terrorist organisation, (18) it also chose not to take direct military action itself, because it needed all available forces to stabilise the other provinces of Iraq.
In 2007--a tumultuous year characterised by open conflict between Turkey's 'Kemalist' elites in the military and state bureaucracies, and the pro-Islamic Justice and Development Party ('AKP') government (19)--the rising anger about PKK attacks had a rallying effect on Turkish authorities and public opinion alike. When, despite the conclusion of a new security agreement with Iraq in September, (20) attacks continued, Turkey eventually ran out of patience. On 7 October 2007, 13 Turkish soldiers were killed in an ambush, days after PKK gunmen had shot dead 13 village guards on a bus. A wave of public outrage swept across Turkey, with 'tens of thousands of demonstrators taking to the streets' and calling for action. (21) In response, and despite calls for restraint by the US and Iraq, Prime Minister Erdogan went to the Grand National Assembly to request authorisation to undertake military incursions into northern Iraq, a request which was overwhelmingly approved. (22) Some 100 000 Turkish ground troops massed on the border. When, on 21 October, another cross-border attack against a military outpost resulted in the killing of 12 soldiers and the capture of eight others, the Turkish Government gave the green light for an aerial bombardment of Kurdish rebel positions just inside northern Iraq. (23) In the following days aerial bombardments were combined with artillery attacks as well as a small-scale hot pursuit operation by Turkish commandos to retrieve the captured soldiers. In a final effort to stave off further military operations, the KRG called on the PKK to end its attacks and the Iraqi Prime Minister ordered the closure of all PKK offices in Iraq. (24) On 25 October, a high-level Iraqi delegation arrived in Ankara, but their assurances were dismissed as unconvincing. (25) On 4 November, the PKK released the eight captured soldiers. (26) The following day, US President Bush received Prime Minister Erdogan at the White House. At the end of the meeting, President Bush emphasised that the PKK was a 'terrorist organization' and a 'common enemy' and offered to share US intelligence with Turkey and to increase political and military cooperation. (27) In the meantime Turkish operations continued, albeit on a relatively small scale.
On 16 December 2007, Turkey launched 'its largest assault in recent years', when over 50 Turkish fighter jets hit PKK positions, some 95 kilometres into Iraqi territory. (28) Similar raids continued throughout December and January. (29) A new phase began when, on 21 February 2008, the Turkish military launched 'Operation Sun', sending several thousand ground troops into northern Iraq, supported by aircraft and artillery. (30) On 29 February, the Turkish General Staff announced that the ground offensive was completed and that troops had returned from Iraq after achieving their objectives. (31) The Turkish military claimed that at least 240 PKK militants were killed during the week-long offensive (as well as 27 members of the Turkish security forces) and that 'almost 800 shelters, weapons stores and other PKK positions were destroyed'. (32) The PKK, however, strongly disputed these figures, and in turn claimed victory after the withdrawal of Turkish ground troops. Independent verification of the death toll has remained impossible. (33) Following the conclusion of the February ground offensive, the Turkish military shifted its focus again to ground operations in Turkey's own south-eastern provinces. (34) Nonetheless, in subsequent months, air raids were still being launched occasionally against PKK forces within northern Iraq. (35)
B The Reaction of the International Community
In the run-up to the Turkish intervention, as the threat of military action became more tangible, the international community initially responded in a two-fold manner. On the one hand, states expressed sympathy with Turkey's position and strongly condemned the PKK attacks of 7 and 21 October 2007. On the other hand, they urged Turkey to pursue a solution through diplomatic means by engaging in a dialogue with the competent federal and regional Iraqi authorities. Thus, a statement by the EU Presidency of 22 October 2007 reiterated the EU's 'total condemnation of the terrorist violence perpetrated by the PKK in Turkish territory, in particular the attacks carried out over this last weekend'.36 At the same time the statement emphasised the importance of 'the strengthening of the dialogue and cooperation between the Governments of Turkey and Iraq to address this problem'37 and called on 'the Iraqi Government and the Kurdish Regional Government to ensure the respect for the Turkish border and guarantee that the Iraqi territory is not used for violent actions against Turkey'.38 Similar declarations were made by the US, the United Kingdom, France and other countries.39 These reactions were by and large inspired by fears that a Turkish intervention in northern Iraq would end the stability in the only non-violent part of Iraq by drawing Iraqi Kurdish fighters into the conflict.40 This would not only jeopardise peace-building efforts in Iraq, but could also deteriorate regional security in the longer run. Despite these fears, states generally took a muted stance when Turkey eventually went ahead with the military option. A distinction can be made between the various protagonists.
The US never explicitly endorsed the intervention, yet it certainly never condemned it. It consistently labelled the PKK a 'common enemy' and promised to step up efforts to combat the terrorist group, urging the Iraqi authorities to do the same.41 More concretely, the US actually aided Turkey by supplying actionable military intelligence about PKK whereabouts and by clearing northern Iraqi airspace to enable Turkish strikes.42 Arrangements hereto were apparently made during subsequent meetings in November 2007. (43) Thus, on 2 November, US Secretary of State Rice visited Ankara. (44) On 5 November, Prime Minister Erdogan met President Bush at the White House. (45) On 20 November, further meetings were held between US Generals Petraeus and Cartwright, and General Saygun of the Turkish General Staff. During his first official visit to the US, on 8 January, President Gul thanked the US for its support of the Turkish campaign. (46)
When on 26 February, Turkey launched its large-scale ground campaign, advance warning was given to both Iraq and the US. (47) On 28 February 2008, however, President Bush told a news conference that the Turks needed to 'move quickly, achieve their objective and get out'. (48) The same day, US Defence Secretary Gates declared that Turkey's incursion 'should be as short and precisely targeted as possible'. (49) As mentioned earlier, Turkish ground troops were withdrawn the next day. This striking conjunction of circumstances obviously fuelled speculations that the withdrawal was a concession to American demands. Turkish authorities unsurprisingly denied rumours of foreign pressure and insisted that the operation was terminated because it had achieved its objectives. (50)
Overall, the US attitude must be evaluated against three factors: the background of the deteriorating 'strategic partnership' with Turkey; (51) Turkey's strategic importance for the US presence in Iraq--consider for example the fact that 70 per cent of American logistics in Iraq went through Turkey; (52) and the US' broader 'war on terror'. In light of Turkey's resoluteness, it appears that the US Administration thought it more appropriate to condone the operations, and even offer some support, while insisting that they should be limited in time and scope. In other words, instead of risking a direct collusion with its ally, the US opted for playing a mitigating role vis-a-vis Turkey. This appears to have generated the desired result both in terms of strengthening the Turkish US relationship and increasing US approval ratings among Turkish citizens. On the other hand, Iraqi leaders were less amused with the American volte-face. On 18 December 2007, for instance, KRG President Barzani cancelled a meeting with Secretary of State Rice in protest over the US' role in the intervention. (53)
The Iraqi authorities initially took a conciliatory attitude. After Turkey had initiated air raids in October, Iraqi President Talabani (a Kurd himself) and KRG President Barzani declared that PKK fighters had to leave the country. (54) Iraqi officials undertook a number of diplomatic demarches and initiated several measures, such as ordering the closure of all PKK offices in the country and setting up extra checkpoints outside cities. (55) At the same time, Talabani declared that Iraq would not hand over any Kurd to the Turkish authorities, and would not itself combat the PKK, while Barzani refused to recognise the PKK as a terrorist organisation. (56) Tension mounted as Turkish aerial...
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