International Law: LOAC

Has Turkey Occupied Northern Syria?

By Shane Reeves, David Wallace
Thursday, September 22, 2016, 8:12 AM

Since August 24th, Turkey has conducted a military operation—known as Euphrates Shield—in northern Syria. The objective of Euphrates Shield is to clear the border area between the towns of Jarablus and al-Rai of jihadists while simultaneously stopping Kurdish militia expansion. Using a powerful combination of air power, mechanized units, and Special Forces, the Turkish government, by their own admission, has accomplished their objective. On September 5th, the Turkish state run news agency Anadolu proclaimed the border area clear of terrorists and announced sole control of the Jarablus-al-Rai line. Yet, despite this success, Turkish President Erdogan recently commented that “operations against terrorist organizations will continue until the end” and has shown no inclination to pull his military back across the border. In fact, the Turkish military seems intent on perhaps pushing even further south.

Is the Turkish control of northern Syria a case of belligerent occupation? And, if so, what does this mean for Turkey and Syria?

A belligerent occupation occurs when the armed forces of one state effectively controls the sovereign territory of another state. Article 42 of the 1907 Hague Regulations Respecting the Laws and Customs of War on Land (Hague Regulation IV) notes that “territory is considered occupied when it is actually placed under the authority of the hostile army. The occupation extends only to the territory where such authority has been established and can be exercised.” Intended to ensure invaded territory remains functioning until the cessation of hostilities, occupations are only a temporary state of affairs between enemy states. Accordingly, the law of occupation—which is part of the broader law of armed conflict—precludes an occupying power from annexing the seized territory. Instead, the occupying power, in carrying out its duties and responsibilities, is expected to set the conditions for the peaceful restoration of authority to the occupied power.

While presupposing a war between state actors has occurred, an occupation does not require actual combat or armed resistance. Article 2 of the 1949 Geneva Conventions, often called “Common Article 2” as it is repeated verbatim in all four of the Conventions, applies “to all cases of partial or total occupation of the territory of a High Contracting Party, even if said occupation meets with no armed resistance.” This express reference to a lack of armed resistance was intended to cover situations, such as the German annexation of Czechoslovakia prior to World War II, where territories were occupied without hostilities. As the commentary to Article 2 notes, “the interests of protected persons are, of course, just as deserving of protections as when the occupation is carried out by force.” What matters, therefore, is not the existence of violence between two states, but instead whether or not a contested area is solidly seized by an invader and, as Yoram Dinstein notes in the International Law of Belligerent Occupation, “the sovereign is actually displaced.” During the Hostages cases, the U.S. Military Tribunal at Nuremberg made clear the answer to these questions are based on the existing facts. The ICRC corroborates this notion stating that “it makes no difference whether an occupation has received Security Council approval, what its aim is, or indeed whether it is called an 'invasion,' 'liberation,' 'administration,' or 'occupation.'. . . [I]t is solely the facts on the ground” that determine” the application of occupation law.

Based on current conditions, Turkey is occupying a portion of northern Syria. It has seized the territory along the Jarablus-al-Rai line and displaced the Syrian government as the sovereign in the area. The fact that the Turkish and Syrian armed forces are not openly engaged is irrelevant. While the Assad regime remains silent on the Turkish cross-border operation, it clearly has not consented to Operation Euphrates Shield. Some may argue that the Syrian regime cannot complain about the Turkish military operation as it has lost control of its northern border. However, the Syrian government is still recognized by the vast majority of the international community and its borders are unchanged. In other words, the Syrian state remains intact and their sovereign territory in the Jarablus-al-Rai region is being occupied by Turkey.

Assuming Turkey is occupying northern Syria, Common Article 2 is triggered and, consequently, the entirety of the law of armed conflict is applicable. For Syrian and Turkish military members this means they have certain rights and obligations that only apply in an international armed conflict. Most importantly, they receive combatant immunity for many of their actions and prisoner of war status if captured. Conversely, they may be targeted without any specific conduct assuming they have not surrendered, been captured, or are otherwise hors de combat. Turkey’s occupation of northern Syria thus changes the legal status of the members of their respective armed forces.

For Turkey, immense responsibilities found in the Hague Regulation IV, the Fourth Geneva Convention of 1949, Additional Protocol I to the 1949 Geneva Conventions and customary international law are assumed as the occupying power. Perhaps the most important, and daunting, obligations facing Turkey are found in Article 43 of Hague Regulation IV which states: “[t]he authority of the legitimate power having in fact passed into the hands of the occupant, the latter shall take all the measures in his power to restore, and ensure, as far as possible, public order and safety, while respecting, unless absolutely prevented, the laws in force in the country.” Contained within this single article are two exceptionally problematic requirements for Turkey.

First, Turkey must restore and maintain public order and safety (for example protecting civilians and their property) in the Jarablus-al-Rai region. In a country ravaged by an ongoing, brutal civil war where lawlessness prevails and even the most basic services are either scarce or nonexistent this will be, to say the least, difficult. Second, Turkey must respect and maintain Syria’s existing legal framework of civil and criminal laws subject to the escape clause— “unless absolutely prevented.” While the Fourth Geneva Convention slightly modifies this responsibility— by permitting suspension or repeal of an occupied country’s penal laws when they constitute a threat to security or an obstacle to the application of the convention—this is not an inconsequential task in the context of contemporary war-torn Syria.

Article 43 is only the beginning of Turkey’s obligations in northern Syria. For example, the Fourth Geneva Convention requires that, to the fullest extent of the means available to it, Turkey has the duty of ensuring the food and medical supplies of the Jarablus-al-Rai population. More specifically, Turkey must bring in the necessary foodstuffs, medical stores and other articles if the resources of northern Syria are inadequate. Similarly, Turkey, in cooperation with national and local authorities, undertakes the responsibility to look after the hygiene and public health of the Jarablus-al-Rai population. Embedded in this duty is a requirement to pay particular attention to combatting the spread of contagious diseases and epidemics. Turkey is also responsible for abiding by detailed rules concerning child welfare, deportations, evacuations, labor, judicial processes, and foundational standards for humane treatment of protected persons. This non-exhaustive list of Turkey’s responsibilities in northern Syria highlights a broader point; namely, any state endeavoring to become an occupying power should pause to consider the extensive obligations they are assuming before seizing enemy terrain.

It is highly unlikely Turkey took this pause prior to launching Operation Euphrates Shield. Most probably, Turkey dismisses the notion of being an occupying power and does not intend on doing any of the concomitant responsibilities that comes with their invasion of Syria. Further, it does not seem that Turkey or Syria are interested in engaging in an international armed conflict. But when it comes to occupation law none of this matters. Operation Euphrates Shield has triggered the law of armed conflict and Turkey now must choose to either fulfill their obligations as an occupying power or be in violation of international law.