Turkey sorts out legal issues for military action in Syria

Bloody dictator Bashar al-Assad’s minority Alawite government in Syria is doing exactly what Turkey has been wanting it to do all along. The Syrian internal crisis is becoming increasingly internationalized, with the regime’s heavy clampdown sending a fresh wave of tens of thousands of refugees to the Turkish and Lebanese borders in recent weeks.

Ankara believes that these refugees sharing their tales of mass graves and massacres at the hands of regime forces will help the “Friends of Syria” (made up of 83 countries) build a solid case to secure a UN-backed resolution condemning the Syrian regime to obscurity and ideally authorizing a “Responsibility to Protect” (R2P) mission to stop the carnage.

Under the growing international outcry over the killings of civilians, it is likely that Russia and China, two veto-wielding permanent members of the UN Security Council, will also find it difficult to resist the public pressure to act against Assad’s forces at the next council’s next meeting.

Assad has been pushed to the limit before. A crackdown on restive provinces in the North last year, sent at least 10,000 refugees into Turkey. Fearing that the world attention would pick up on the refugee crisis, and turn it into a global emergency crisis, Assad slowed down the military operations and allowed Arab League observers to visit restive cities. He bought time for the regime.

Well, all of this is public knowledge. Behind closed doors, however, Syria has silently worked to convince refugees to return to Syria by offering them monetary compensation and other incentives.

Damascus went as far as to, unashamedly, ask Ankara to forcefully remove the refugees from Turkish soil and hand them over to Syrian authorities, a request that was immediately turned down by Turkish officials. The demand of Syrian authorities to visit the camps was turned down as well. However, Syrian intelligence operatives did manage to get their message into the camps, and began spreading word that, upon their return, the government of Syria will provide them with jobs, free housing and even a complimentary return air ticket from Turkey.

Now we see the same scenario that played out last year put on the stage again. This time it is Kofi Annan, joint special envoy of the UN and Arab League, sending UN observers to Syria. The refugee crisis resulting from the latest push by the regime forces has turned out to be much bigger than Assad originally thought, changing the dynamics on the ground drastically.

The total number of refugees in Turkish camps exceeded 24,000 as of last weekend and the numbers continue to rise, and Turkey has not lost time capitalizing on this opening. According to the Anatolia news agency, Turkish Foreign Minister Ahmet Davutoğlu made an urgent call, at 2 a.m. on Friday morning, to UN Secretary-General Ban Ki-moon, inviting the UN chief to send representatives to the Turkish-Syrian border to monitor the increasing violence first-hand. Davutoğlu later appealed to the UN High Commissioner for Refugees for help in meeting challenges the country faces in dealing with the growing number of refugees.

A number of actions recently taken by government agencies in Turkey indicate that Ankara has been preparing for the inevitability of sending military troops to Syria to establish a humanitarian corridor. The corridor would be used to reach cities and towns under siege as well as possibly create a safety buffer zone for internally displaced persons (IDPs).

President Abdullah Gül and Defense Minister İsmet Yılmaz both signaled last week that a military option is on the table and Turkey must be prepared for the possibility. Prime Minister Recep Tayyip Erdoğan said on Saturday, the eve of his landmark visit to China, that Turkey will take its own measures against Syria after the UN deadline for the cease-fire in Syria. The Turkish Red Crescent (Kızılay) announced on Friday that it was preparing to deliver humanitarian aid to Syria in the event that Turkey or the international community calls for a “humanitarian aid corridor” inside Syrian territory.

What will happen if the UN cannot get its act together, and Russia and China end up using their veto powers for the third time? Ankara will probably invoke the 1998 Adana agreement with Syria to justify the military interference while calling on NATO members for the application of the Article 5 of the NATO Charter, which says that an attack on any member shall be considered to be an attack on all. The article was invoked by the US for the first time in October 2001, when NATO determined that the terrorist attacks on the twin towers of the World Trade Center in New York City were indeed eligible under the terms of the North Atlantic Treaty. Since the Assad regime allows the Kurdistan Workers’ Party (PKK) and its affiliates to launch attacks on Turkish soil and harbors some 1,500 to 2,000 hard-core PKK militants in areas close to the Turkish border, Turkey can very well utilize the NATO security cover for assistance.

Syria has bowed to Turkish pressure before. In the late 1990s, Bashar’s father Hafez al-Assad caved under the pressure mounted by Turkey, and finally stopped harboring the fugitive PKK leader Abdullah Öcalan and expelled him from Damascus.

On Oct. 20, 1998, both Turkey and Syria signed the Adana Agreement, which set out very explicit terms for preventing PKK activities in Syria. It squarely puts all the responsibility on the Syrian government in this matter. For example, Article 1 of the Adana Agreement states that Syria will not permit any activity on its territory aimed at jeopardizing the “security and stability of Turkey.” Be it PKK terrorism or a crackdown on the opposition, both would be considered threats that seriously jeopardize the “security and stability of Turkey” — in which case Turkey reserves the right to take necessary measures for self-defense, including armed interference into Syrian territory to contain the threat.

While the Adana Agreement was a turning point in bilateral relations, it was later complemented by a security agreement signed between interior ministers on Sept. 10, 2001. After a long hiatus, security terms were further strengthened in another agreement signed between the same ministries in Damascus on Dec. 23, 2009.

But the most comprehensive deal came in 2010 when the two sides inked a significant agreement on cooperation against terror. It was signed on Dec. 21, 2010 by Davutoğlu and Syrian Foreign Minister Walid Mouallem and ratified by the Turkish Parliament on April 6, 2011. This agreement has 23 articles, which have important implications for Turkey. For example, Article 7 of the agreement gives both parties the right to conduct joint operations in each other’s territory. If Turkey officially recognizes the Syrian National Council (SNC) as the only legitimate government of Syria, which is likely to happen in the upcoming Paris meeting of the Friends of Syria if Assad fails to follow through on the Annan plan, it can very well secure the consent of the SNC to launch joint operations with the Free Syrian Army against Assad’s forces.

By the way, there is another worry that looms large on the horizon for Turkey. Turkish officials in Ankara are concerned that being a party to the European Convention on Human Rights might mean there could be a huge influx of cases where Turkey would be held responsible for violations of the articles of the convention even if it involves Syrian citizens. Asylum and refugee cases, initiated in Turkish courts, may eventually end up in the Strasbourg court, creating a headache for the Turkish government.

As a signatory member for the convention, Turkey has to respond to the court for all claims involving Syrian citizens who are currently present on its territory because the Strasbourg-based European Court of Human Rights (ECtHR), whose jurisdiction covers Turkey but not Syria, will see only Ankara as an interlocutor for possible future violations on Turkish soil. Ankara will find itself in a difficult position handling many legal cases at the ECtHR.

We have seen similar problems when Iranians cracked down on the opposition in 2009 and some Iranians who took refuge in Turkey appealed their cases to the ECtHR. Ankara does not like the idea that it has to deal with a huge number of cases that have nothing to do with Turkey. Establishing a civilian buffer zone within Syria under the protection of regional or UN-mandated military protection with Turkish forces in the lead will ease legal concerns raised in Ankara.

All in all, the urgency to act against the Assad regime’s aggression on its own citizens, in order to stabilize the country as soon as possible, is a sensitive issue for the national security of Turkey. For that Ankara is willing, even determined, according to some officials, to invoke unilateral or multilateral legal remedies at its disposal. It clearly prefers the multilateral approach for the time being. But when push comes to shove, Turkey will not hesitate to act alone, as it did in 1998 in Syria or in 1975 in Cyprus. Watch out for the signal that will indicate that Turkey is ready to act: When the government decides to seek a mandate from the Turkish Parliament for troop deployment in a foreign country, as it must according to the Constitution, it will mean the real warning shot for military incursion into Syria has already been fired.

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