Self Defence at International Law: Does Turkey have a case against Barzani and the PKK

Dear Friends,

I am sick and tired of Turkish Politicians and Military Officers rattling their sabres and not taking effective and decisive action, whilst we loose more and more loved ones and the Turkish economy suffers. The latest slap in the face to Turks comes from Barzani. For many years, I have wondered why Turkey has not taken decisive action against those that are a real and imminent threat to Turkish National Security. Israel and the US have no qualms about using deadly force. So I thought I would explore the law of self-defence at the International level, and let you decide whether or not Turkey can or more appropriately should take decisive action against the PKK in Northern Iraq. You apply the facts (PKK Terrorism, Barzani’s aggression) as the whole world knows it to the below criteria, I do not intend on reproducing all that the PKK and Barzani have done or said historically.

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The use of military force is a valid customary international law norm and it is enshrined in the United Nations Charter. Nevertheless, the use of force is only authorised if it falls under one of two categories: self-defence (article 41 of the United Nations Charter), or Security Council authorisation. To justify a resort to pre-emptive war, a state must give reasonable proof that the action is necessary to the vital national security interests of the state, and that the act of aggression in self-defence is proportional, according to Charter principles. The threat imposed by an aggressor must be proven to be clear and imminent, direct, critical to the state facing disproportionate danger, and unable to be handled using peaceful alternatives. According to the Charter, to deem self-defence lawful requires that an attack has already been launched against a victim state. Examples of states acting pre-emptively in anticipatory self-defence have further elaborated on this legality, creating in some instances an international acceptance that in the case of an imminent attack, the necessity of a proportional assault in self-defence is lawful. However, the issue remains that the Charter, in order to deem an action as lawful self-defence, requires the existence of an armed attack on the victim state. Interpretation on what constitutes an armed attack is what generates the most disagreement amongst the international law community. It is agreeable, however, that no state can be expected to sit idly by and await the first blow of an armed attack by an aggressor state in the modern era of warfare.

The recent War on Terrorism is giving us an example of how this particular article of the Charter can be difficult to interpret, and creates a need for modernising the internationally accepted norms and evolving the Charter’s principles on self-defence in order to accommodate victim states.

The criterion for lawful self-defence derives from many legal backgrounds that have become the norm in international law standards. The classic formula that supports the principle of anticipatory self-defence stems from the Caroline incident, which arose in 1837. The main reason for recalling this incident is for then U.S. Secretary of State Daniel Webster’s classic formulation of the essential elements of anticipatory self-defence: immediacy, necessity, and proportionality. Because of these elements, this is the case most often cited when determining whether or not a state has the right to resort to force when faced with imminent danger to national security. In brief, this incident took place during a rebellion of Canadians against the British Crown government.

A band of Canadian rebels, seeking a more democratic Canada, had been forced to flee to the United States after leading the failed Upper Canada Rebellion. They took refuge on Navy Island on the Canadian side of the Niagara River and declared themselves the Republic of Canada. The rebels were supported in their cause by many Americans, who considered the rebellion a continuation of the American Revolutionary War. They supplied the Canadian insurgents with supplies, money, provisions, and arms via the steamboat Caroline, and also enlisted to fight in an invasion of Canada. Despite the knowledge of these occurrences, the United States government did not attempt to stop the Americans from aiding the Canadian rebels, and claimed that the United States government did not have the authority to force neutrality. On December 29 Colonel Sir Allan MacNab ordered a party of militia to cross the river and set the Caroline ablaze. Finding her docked at Fort Schlosser, New York, they seized her, towed her into the current, set her afire and cast her adrift over Niagara Falls, killing one American in the process. American forces burned British steamer Sir Robert Peel while it was in the US. The tensions were ultimately settled by the Webster-Ashburton Treaty. Several years after the affair, through an exchange of diplomatic messages, Webster argued that the sovereignty of the United States had been violated and that the British, to declare this act in self-defence, would have had to “show a necessity of self-defence, instant, overwhelming, leaving no choice of means, and no moment for deliberation”. Furthermore, he argued that the act, if justified by self-defence necessity, must be proportional, and not exact greater means than necessary. From this correspondence, the rules for anticipatory self-defence were formed: immanency, necessity, and proportionality.

This criterion, which later became the norm in international law relating to anticipatory self-defence in another sovereign state’s territory, can be broken into four elements that must be fulfilled. The first is necessity, due to a grave threat of a great magnitude. The second element is the likelihood that the threat will be realised unless anticipatory self-defence occurs, stemming from immanency of attack. The third element is the exhaustion of all peaceful means and alternatives to using force. The last of these elements is that the use of pre-emptive force is consistent with Charter principles, namely proportionality.

After the Caroline affair, both imminence and necessity became crucial factors in determining self-defence. However, one hundred years following the incident, the UN Charter was adopted, which changed the scope in regards to the use of force by states. The UN Charter prohibits all use of force, except in two circumstances: the first being with the explicit authorisation of the Security Council under Chapter VII, Article 42, and the second case being in self-defence as read in Article 51 in response to an attack on the territory of a member state. Therefore, Article 2 (4) of the UN Charter requires countries to refrain from the use of force, but permits in Article 51 the exercise of the “inherent right of individual or collective self-defence if an armed attack occurs…until the Security Council has taken measures necessary to maintain international peace and security”. Many international lawyers assert that the Charter explicitly prohibits the use of pre-emptive force until after an attack, as it is written in print in the Charter. Consequently, there have been countless debates over the Charter’s meaning of “armed attack”. It has been argued that this term implies a state may only act in self-defence when an attack has actually occurred, if the text is read literally. However, in the modern era of warfare and advanced weaponry, no state can be expected to wait to be a victim of the first attack before defending the nation, if the state’s fundamental security is at stake. The nature of threats to security has undoubtedly changed since the inception of the Charter in 1945, when the assumption was that a global security organisation could effectively control the use of force by states.

There are two major events that are cited to demonstrate the legitimacy of anticipatory self-defence, despite the adoption of the United Nations Charter. The first of these, which is often referred to for legal advice in the realm of anticipatory self-defence, is Israel’s pre-emptive strike at the beginning of the 1967 Six-Day War. Israel launched the attack on the Egyptian army, which was massing at its borders: in this situation, immediacy is illustrated, with a visible line of troops and weaponry, and likewise, intent is obvious, which was furthered by intercepting communications, which clearly outlined the plans of the Egyptian forces.

The second commonly cited incident is Israel’s 1981 bombing of Iraq’s Osirak nuclear reactor, following intelligence sources indicating to the Israeli government that the Iraqis were preparing to turn the nuclear reactor on. The Israelis decided to deal with the perceived threat sooner rather than later and launched air strikes, claiming that this action was vital to protect national security, and was acted out in the basis of self-defence. However, this attack was declared an illegal preventive attack, which was said to have threatened regional security, and the Security Council accordingly condemned the action, claiming that the Israelis had failed to exhaust peaceful means in order to resolve the perceived situation.

The problem that is encountered in defining the legality of pre-emptive self-defence is found in terrorism. The rule prohibiting the use of force applies only to states. Terrorists are not subject to international law, as they engage themselves in non-state violence. However, in 1974, the General Assembly concluded that in situations where a state is involved in non-state violence, the very involvement is equivalent to an armed attack. Thus, a state falling victim to terrorist attacks from a country harbouring or supporting terrorists could invoke the right of self-defence. It was on the basis of this ruling that the United States justified the intervention of the American state and her allies in Afghanistan following the attack on the Twin Towers on September 11th.

Although the guidelines regarding pre-emptive self-defence and the use of force are defined in the UN Charter and in international law norms, the reality is that terrorism is transnational and terrorists are not subject to the same deterrent pressures that States are. Terrorism is a grave danger, and the difficulty comes in reaching terrorists that are being harboured and/or supported by sovereign states. No matter how technologically advanced and prepared a military or state is, the prevention of serious terrorist attacks is not feasible.

Such is the justification behind the new approach to terrorism that has been adopted by the Bush administration as part of the new National Security Strategy (NSS) of 17 September 2002. Essentially, the NSS has changed the approach to terrorism from one of a criminal offence to a grave threat to national security. Although the Strategy does mention that this new approach will not allow the US to “use force in all cases to pre-empt emerging threats, nor should nations use pre-emption as a pretext for aggression”, the NSS clearly asserts the United States’ right to stop terrorists and rogue states before they are able to inflict damage on the American state or her allies.

The Bush administration has stated that “the greater the threat, the greater the risk of inaction- and the more compelling the case for taking anticipatory action to defend ourselves, even if uncertainty remains as to the time and place of the enemy’s attack”. This is a dangerous conclusion to be drawn. Too many questions are left unanswered: if the international community decides that this new doctrine of pre-emptive self-defence is applicable in cases of non-state aggression, when and on what terms will it be acceptable for one state to attack terrorists residing in another sovereign state? Who will be responsible for drawing the lines of legality, and deciding when a terrorist threat is grave and imminent enough to justify anticipatory actions? Certainly, it is without doubt that the existence today of weapons of mass destruction in the hands of transnational actors who are not subject to the international laws on the use of force creates a need for the international community to consider an evolution of the Charter principles and exclusions to the laws regarding the use of military force in self-defence. If correctly applied, anticipatory or pre-emptive self-defence is part of a state’s legitimate authority to use self-defence.