The important role that Turkey plays in the Middle Eastern chessboard is well known, especially in two large territories such as Syria and Iraq, often coming out of the legal and political perspective. In fact, just a few months ago, that is to say in October of 2016, the government authorities of Ankara had deployed their military troops in the Iraqi town of Bashiqa, 12 km north-east from the city of Mosul, under the control of the terrorist group who created in June 2014 Stato islamico or DAESH. Today, this city has been almost liberated by Iraqi military forces. There was no shortage of heavy protests from the Iraqi government calling on the Turkish government to withdraw its army from Iraq. Now, it is necessary to understand whether the intervention of the Turkish state in the north of Iraq is in fact the legal basis, that is to say if it has been respectful of the criterion of lawfulness concerning its intervention in another State without the consent of the latter.
First of all, it should be noted that although there have been serious human rights violations during the civil war in Iraq, de jure any motivation can not be accepted as justification for interventions and violations of the sovereignty and territorial integrity of a State. From this, the Turkish military intervention in Iraqi territory is considered as a real violation of the principle of respect due to the integrity of the territory and the political independence of each State, which even includes the inviolability of the territory of the State same.
On this last point, the International Court of Justice had already expressed its opinion in advisory opinion, in accordance with international law, of the 22 February 2010 military declaration of independence on Kosovo, which had delineated the fact that the principle of territorial integrity, which is an important element of the international legal order and is strengthened by the inhibition of the use of armed force in customary international law and the 2 article, 4 paragraph, of the United Nations Charter - according to which Members must refrain from their international relations by the threat or use of force, either against the territorial integrity or political independence of any State, or in any other manner incompatible with the purposes of the United Nations - is a fundamental criterion of the international order and its purpose is confined within international relations, avoiding to rule on the point and has asserted - always the IGC - that this principle applies, to be clear, only to relations between states and not to those between the central state and its province. Among other things, although the intervention of Turkish troops in the province of Mosul already has a precedent of violation of Iraqi territory, it would be clear that the justification presented by the Ankara authorities for violating the principle of territorial integrity that conducted in northern Iraq, was based on the fact that it had to defend itself against ISIS and the PKK (Partîya Karkerén Kurdîstan).
Historically, the city of Mosul was part of the Ottoman Empire, until the end of the 1 World War, but as a result of the occupation of this city by the British around the 1918, after discovering the presence of crude oil fields in the area, the question concerning the solution of the border between Turkey and Iraq was placed on the table of the Council of the League of Nations. The latter argued that Iraq would keep the city of Mosul and as a result the new Turkish republic reluctantly consented to the decision, in the 1926, through the signing of the Border Treaty with Iraq. Finally, Turkey was persuaded to peace by supporting the independence of Iraq. In addition, Turkey itself agreed to act according to the Treaty mainly for the reason that Iraq agreed to pay a 10% royalty on oil depots on Mosul to Turkey for 25 years. The Treaty between the United Kingdom, Iraq and Turkey, abbreviated as " Treaty of Ankara, the 5 June 1926 was signed in the Turkish capital by the British government and by the new Turkish republic to establish the political borders between Iraq and Turkey and to regulate good neighborly relations.
With the signing of this Turkish-Iraqi agreement, Turkey definitively left Iraq with most of the territory of Mosul, with only one condition that is to say that of non-discontinuity of the national unity and the territorial integrity of Iraq. In this regard, Turkey asserted that although the national unity and the territorial integrity of Iraq has been severely disrupted, it has been interrupted by the terrorist acts of ISIS and by the occupation of a large part of the territory of northern Iraq. , including the city of Mosul, Turkey intervened in the territory of Mosul to fight against DAESH / ISIS, as the terrorist acts of this pseudo state, in the border area, continued to threaten the security and sovereignty of Turkey. Moreover, it is believed that the Turkish attitude was based on the declaration, by all means in their power, of the 6 article of the Treaty of Ankara which states that the High Contracting Parties are mutually obliged to oppose the preparations of one or more armed individuals for the purpose of looting or brigandage in the neighboring border areas and preventing it from being overrun. In other words, Turkey believes that the rule in question allows Turkish military troops to intervene in Iraq to guarantee the sovereignty and territorial integrity of Iraq in the territory of Mosul, which is mostly inhabited by the ethnic group of Turkish origin. Turkey also links its intervention to protect its relatives in the region. From this point of view, the occupation of the Turkish-Iraqi border area, as well as the terrorist attacks committed within it, could be interpreted as a real looting or brigandage in the border area, precisely, Turkish -Iraqi.
Ergo, it should be noted that these motivations do not have a legal basis. Firstly, it must be borne in mind that the application of the 1926 Treaty on the condition of the non-discontinuity of the unity of the nation and the integrity of the Iraqi territory is not therefore part of the Treaty of Ankara as an international border agreement. Secondly, it is also necessary to consider the fact that a broad interpretation of the 6 article of this Treaty, in order to confer the right of military intervention in the Iraqi territorial context, is incompatible with the aims and aims of the treaty itself. . This interpretation, in fact, does not conform to the ordinary sense so much as to be given to the terms contained in the article 6 del Treaty of Ankara. By virtue of what is stated in the 31 article 1, of the Vienna Convention on the Law of Treaties of 1969, it is emphasized that a treaty must be interpreted in good faith following the ordinary meaning to be attributed to the terms of the treaty in their context and in the light of its object. It can be assumed that each way of interpreting an agreement clearly, which subsequently turns into a treaty, in the context of general international law, must take into account every aspect of the draft of the future treaty, the words used, the intention of the Parties and the goals of the specific document, so it becomes clear that it is absolutely impossible not to weight each of these elements. From here, it would not be correct to assume that the rule, contained in the 6 article of the Treaty of Ankaraallows the intervention of military troops of States Parties in domestic or domestic matters of other States, since the treaties on the borders between States are stipulated and based on the principle of mutual respect for the sovereignty, the rights and interests of the Parties. This indicates that agreements on borders can not be interpreted broadly in favor of a Party to the Treaty. In short, a broad interpretation of the provisions of the treaties concerning the borders or borders between two or more subjects of international law, est est states, can cause the encroachment of the very rules of international law.
However, the violation by the armed forces of the Turkish state of sovereignty belonging to the Iraqi state and its territorial integrity, through armed coercive intervention in the city of Mosul, could be dealt with in the sphere of political rationality. The authorities of the Ankara government had declared that their country was using the army to protect its political and economic interests in the city of Mosul, in the north of Iraq, while fighting the ISIS jihadists and the PKK. On a purely political level, the city of Mosul is also very important for the Turkish government, not only for the ISIS, being located in Iraqi territory, but also for the presence of the PKK in this area that really threatens Turkish national security . It was emphasized that the PKK de facto established a military administration in Sinjar (a small city in northwestern Iraq) after entering to fight the Islamic State. In essence, the main concern of Turkish government authorities was to fill the PKK with a gap in the emerging power in Northern Iraq. In other words, although the small city of Sinjar has been freed from the occupation of ISIS, the government in Baghdad still lacks the power to run the region, even though Iraqi military forces are in recent times harshly reacting against DAESH or ISIS, non-state actor.
From the perspective of law, the International Court of Justice (CIG) has indicated, in the well-known sentence on the Corfu Strait of 1949, whose actors were Great Britain and Albania, that the alleged right of intervention is the manifestation a policy of force, as happened in the past, which has given rise to a series of abuses and which can not find a position within the framework of international law. As a consequence, the respect by the independent States that there must be for the sovereignty and integrity of the other State is the foundation of relations between States. It is therefore argued that, from a political point of view, the intervention of Turkish military troops in the city of Mosul, although it has been placed before the terrorist actions of the PKK separatist militants for many years, can not be covered by acceptance as reason for justifying this intervention. In this case, however, international law inhibits such intervention under all circumstances. It must also be said that the Iraqi government is in the inability to take any action against the PKK that has occupied that Iraqi territorial border in the area of Sinjar, violating the absolute sovereignty of the Iraqi state. In essence, the consolidation of the PKK, present in the Iraqi territory, indicates the fact that the national security of the Turkish state will inevitably be threatened. From this angle, it can be argued that the intervention of Turkey's armed forces in the territory of Iraq, based on the right of self-defense, can be motivated by the inability and unwillingness of the Iraqi state of residence to take the necessary measures to stifle and prevent threats from armed groups that fall within the sphere of non-state actors. However, as the IGC reiterated, there is no provision of general international law that allows another State to exercise the right of self-defense by virtue of its own assessment of the situation. This means that the IGC has rejected the so-called criterion of lack of will or incapacity, which does not fall within the scope of customary international law.
(photo: Türk Silahlı Kuvvetleri)
