Assessing International Law on Self-Determination and Extraterritorial Use of Force in Rojava

In July 2012, Kurds living in northeastern Syria assumed control of the state institutions there to exert independent control over their internal and external affairs. They subsequently adopted “The Social Contract of Rojava Cantons in Syria” as the constitution of a self-proclaimed Kurdish autonomous canton union, and on March 17, 2016, issued a unilateral declaration of democratic confederalism. The name of the region has since been changed from Rojava (western Kurdistan) to Northern Syria in December 2016, and then to the Autonomous Administration of North and East Syria (AANES) in 2018—though Rojava is still often used. These new names affirm the existence of the entity as part of Syria and an equal multiethnic polity, built on pluralism, democracy, women’s empowerment, and environmental sustainability (as per the social contract) via a consociational system. Through the social contract, Kurdish groups have used the power of an internal form of self-determination to address the social fragmentation of Syrian society.

Rojava has not been recognized by the Syrian state and faces internal and external challenges. The greatest threat the system has faced is the Turkish invasion, which began in 2018. A close reading of international law demonstrates that Turkey’s use of force in the context of Kurdish self-determination is illegal. In this situation, other states can take more serious measures to stop Turkey and may request the accused state to comply with erga omnes rules related to self-determination. These third-party states are also allowed to aid the Kurdish self-determination movement politically––short of dispatching troops.

The Turkish Invasion of Rojava (Northern Syria)

Turkey launched Operation Olive Branch on Jan. 19, 2018, with the deployment of Turkish troops into the Kurdish canton of Afrin in Rojava. The argument put forward by the Turkish government to justify the operation was that the intervention was necessary to “counter” the Kurdistan Workers’ Party (Partiya Karkerên/krêkaren Kurdistanê, PKK), the Kurdistan Communities Union (Koma Civakên Kûrdistan, KCK‎), the Democratic Union Party (Partiya Yekîtiya Dêmokrat, PYD), and the Islamic State, and to prevent an alleged “terrorist threat.” Many Kurdish civilians were killed during the operation. Later, Turkey occupied Afrin without objections from any third-party country or international organization.

Turkey then escalated the intervention beginning on Oct. 9, 2019; the new phase operated under the code name Peace Spring and engaged the help of the Free Syrian Army (FSA) and former members of the Islamic State. The operation followed the U.S. decision to withdraw its troops from Kurdish regions and invaded deeper into Rojava. Turkey justified its invasion in a series of letters to the United Nations in which it claimed its right to self-defense against a “direct and imminent threat” under Article 51 of the U.N. Charter and contended that it “will carry out this operation in support of efforts to facilitate the safe and voluntary return of displaced Syrians to their homes of origin.”

Turkey’s justifications are controversial and could be considered a violation of the conventions governing the use of force and a breach of other principles of international law. Moreover, Turkish actions in the second phase of its intervention have incontrovertibly led to the mass displacement of people, summary executions that qualify as war crimes, and unlawful attacks, as reported by the U.N. High Commissioner for Human Rights and Amnesty International. Turkey’s use of force under the pretext of self-defense against the substate entity of Rojava and the de facto annexation of its territory are illegal. The use of force in the context of extracolonial self-determination is restricted by legal boundaries, but without enforcement by third-party states they are not sufficient to prevent violence.

Self-Determination and Extraterritorial Use of Force

Since 1945, colonial and a few non-colonial territorial populations like the Kurds of Rojava have been aided by the prohibition against the use of force by oppressive states. Article 2(4) of the U.N. Charter prohibits the threat or use of force by U.N. and non-U.N. members, except in instances of self-defense against armed attack under Article 51. More broadly, the charter proscribes the forceful annexation of territory. The charter interconnects the proscription of the use of force and self-determination by prohibiting the use of force “in any other manner inconsistent with the Purposes of the United Nations.” The additional passus does not narrow the proscription—the principle of “equal rights and self-determination of peoples” is among the stated purposes of the United Nations established in Article 1(2) of the charter. The use of the word “other” extends the prohibition of the use of force to the context of equal rights and self-determination of peoples. Therefore, the use of force is banned against peoples laying a claim to their right to self-determination.

Historically, though, the United Nations has not applied these key clauses of the charter to protect political groups seeking self-determination or to condemn states that threaten them. “Territorial integrity … of any state” under Article 2(4) does not cover territories undergoing self-determination; it does not extend to the use of force against colonial self-determination units or territories that is not covered by Article 2(4) prohibition. Though a close reading of Article 2(4) should protect self-determination projects, the United Nations has relied on other resolutions when attempting to constrain interventionist states. A relevant example concerns the African colonies of Guinea-Bissau, Angola, Cape Verde, and Mozambique, which were hindered from exercising their right to self-determination by their administering power, Portugal. The Security Council condemned Portugal’s “military operations and all acts of repression” preventing the people of these territories from exercising their right to self-determination and independence on the basis of Resolution 1514(XV). The Security Council did not refer to a violation of Article 2(4). In other words, Article 2(4) does not protect imperial states engaged in military operations directed against territory entitled to self-determination but controlled through forms of colonial or alien domination.

These precedents, though, demonstrate that the use of force is illegal for colonizers defending their colonial claim in a context of colonial self-determination as the use of force, in this context, is a violation of the right to self-determination. This precedent produces an interpretation of Article 2(4) that the invasion and occupation by a foreign power to decide the statehood and governmental form of a self-determined entity is likewise illegal. Moreover, the prohibition of the use of force means that no state may use force to deny the right of ethnic or racial groups equal access to government, and that no state may implement coercive measures to disenfranchise people of their right to self-determination—for example, when a self-determined unit is invaded and forcibly annexed without being allowed to opt for incorporation or any alternative status. In this case, the non-state self-determined unit may not use force to exercise its right to self-determination, but under international law, a non-state colonial entity’s use of force to assert its right to self-determination is unlikely to be characterized as illegal.

The acknowledgement of the right or capacity of the entity to exert force to defend its rights relies on the legal personality that its status as a self-determined unit confers upon it. The use of armed force is consistent with Article 7 of the General Assembly’s Declaration on the Definition of Aggression. In this context, the use of force is considered a form of self-defense against an oppressive state. Article 7 provides that

[n]othing … could in any way prejudice the right to self-determination, freedom and independence, as derived from the Charter, of peoples forcibly deprived of that right and referred to in the Declaration on Principles of International Law concerning Friendly Relations and Cooperation among States in accordance with the Charter of the United Nations, particularly peoples under colonial and racist regimes or other forms of alien domination.

The international community has not yet accepted that the use of force to realize self-determination is lawful. Under the Declaration on Friendly Relations (GA Resolution 2625(XXV)), states are barred from implementing “any forcible action which deprives peoples referred to in the elaboration of the principle of equal rights and self-determination of their right to self-determination and freedom and independence.” The declaration entitles people “to seek and to receive support” in pursuit of their right to self-determination, but this is contradicted in the other relevant paragraph of the declaration, which states that “[n]othing in the foregoing paragraphs shall be construed as authorizing or encouraging any action which would dismember or impair, totally or in part, the territorial integrity or political unity of sovereign and independent States conducting themselves in compliance with the principle of equal rights and self-determination of peoples.” This condition, though, is contingent on the government “representing the whole people belonging to the territory without distinction as to race, creed or colour.”

Using force to annex a self-determined territory is illegal without the consent of the people of the self-determined entity. The unlawfulness of such an annexation should be treated more severely in the special cases of a territory exercising a right of self-determination. Where a state annexes a territory on behalf of, or at least with the support of, a people having the right of self-determination, their self-determination alone does not make the annexation legal—consider Russia’s annexation of Crimea. Yet, as James Crawford notes, it “may allow illegality to be more readily accommodated through the processes of recognition, whereas in other circumstances aggression partakes of the nature of a breach of a peremptory norm and is not, or not readily, curable by lapse of time or acquiescence.” On these grounds, the right of a people and its territory to self-determination will not end if the territory is annexed by an external force unless the local population consents or the annexing state is the enclaving state. The non-self-governing territories of East Timor and the Baltic states (Estonia, Latvia and Lithuania) are a few examples worth mentioning as their annexation, by Indonesia and the Soviet Union, respectively, did not end their right to self-determination. The Baltic states regained their independence in 1991, and East Timor (now Timor-Leste) achieved independence in 2002.

If a state deprives peoples of their right to self-determination, other states may request the accused state to comply with the corresponding erga omnes rules related to self-determination. The intervening state’s infringement on erga omnes obligations would oblige third-party states to take countermeasures permitted by international law against the respective state. This is possible through concerted action—for example, the General Assembly forum. A state that intends to take action unilaterally should settle the dispute peacefully (for example, with conciliation) before resorting to other necessary, proportional countermeasures such as sanctions. State practice provides examples in cases of officially unrecognized but de facto breaches against self-determination. The United Nations took countermeasures against Southern Rhodesia and Become a supporter of IT Security News and help us remove the ads.