Jus ad Bellum/UN Charter/Sovereignty

Rescuing the Kidnapped Turks in Iraq

By Ashley Deeks
Sunday, June 15, 2014, 2:00 PM

The question on everyone's lips is whether the United States will use force – most likely air strikes -- in Iraq to help suppress the threat posed by ISIS.  Jack, Wells, and Bobby discussed here, here, and here the domestic legal basis for that use of force. The international legal basis almost certainly would be the consent of the Iraqi government to the U.S. presence and use of force in Iraq against ISIS forces.

But what about Turkey?  Does Turkey have the right to use force in Iraq in defense of its nationals?  On Wednesday, ISIS stormed the Turkish Consulate in Mosul and took 49 people hostage, including the Consul General, sixteen diplomats, and three children.  ISIS also abducted about 30 Turkish truck drivers on Tuesday.

There is a long history of states using non-consensual force in other states to rescue their nationals who have been taken hostage or are otherwise facing serious bodily threat. This right generally is seen as a variant of a state’s right of national self-defense. Examples include the aborted effort to rescue the U.S. hostages in Iran in 1980 and the UK’s extraction of its nationals from Libya in 2011. While these rescues sometimes are controversial, the international community seems most accepting of non-consensual uses of force to rescue nationals when (1) the nationals in question face imminent threat of (or have suffered actual) injury; (2) the host state is unwilling or unable to protect or rescue them; and (3) the action of the intervening state clearly is limited to the goal of rescuing its nationals – that is, it is not engaging in pretextual intervention.  Indeed, meeting the second criterion may be not just politically important but also legally required before a state could enter another state in this context.

In this case, Turkey reportedly is talking about the status of the truck drivers with officials in Irbil, Baghdad, Tehran, Washington, and Mosul (though who in Mosul is answering the phones is unclear, nor is it clear from news reports whether these conversations include discussions about those taken from the Consulate). This of course raises the prospect that Maliki’s government might consent to have Turkish forces enter Iraq to rescue the Turkish nationals. If Iraq doesn’t consent, it’s not clear whether Iraqi special forces would be willing and able to rescue the Turkish nationals themselves, but the prospects don’t seem good. As a practical matter, it is not clear that Turkish forces could execute that mission either, though Turkish Foreign Minister Davutoglu warned that Turkey “would not allow anyone who harms its nationals to go unpunished.”

In short, as a legal matter, it is not known (at least to the public) whether the kidnapped nationals face an imminent threat of injury, and it is quite possible, though not certain, that Iraq is unwilling or unable to rescue those nationals from ISIS’s control. If the Maliki government loses total control of the country, Turkey almost certainly would be legally justified in using force in Iraq to rescue its nationals.  As a factual and practical matter, though, Turkey seems focused on non-military options to regain custody of its nationals, at least at this stage.