Today, the world is watching as the internal conflict in Syria threatens to erupt into a full scale regional war after a border incident between Syrian and Turkish military forces left five Turkish civilians and multiple Syrian soldiers dead. On Wednesday, Syrian military forces fired mortar rounds into Akcakale, a small town inside Turkey’s southern border, killing a woman and her four children. Turkish forces responded with artillery strikes against the Syrian army. The Turkish Parliament has authorized the use of military force in Syria for a period of one year, raising the specter of all-out war as the Turkish military continued retaliatory strikes for a fourth straight day on Saturday. These events are sure to send lawyers and adviser, eager to classify the hostilities, scrambling for answers.
Up to now, military operations have remained limited in scope, with Turkey and Syria exchanging low levels of artillery fire across the border resulting in few casualties. So does an “international armed conflict”, a legal term of art used by the international community to describe a military conflict between two or more nations, exist between Syria and Turkey and thereby trigger the application of international humanitarian law (IHL)? The short answer is yes. While a state of war is not recognized between the two nations, all combat operations between Syria and Turkey must comply with IHL. But how does one reach this conclusion?
To determine whether acts of violence equate to international armed conflict, practitioners turn to the Geneva Conventions and their commentary for answers. Common Article 2 of the 1949 Geneva Conventions, regulating the application of international humanitarian law in the context of international hostilities, states that these laws “shall apply to all cases of declared war or any other armed conflict which may arise between two or more [Parties to the Conventions], even if the state of war is not recognized by one of them.” Unlike situations of non-international armed conflicts – that is internal conflicts (sometimes referred to as “civil wars”) or conflicts between non-state armed groups – international armed conflicts need not reach a minimum threshold of intensity for international humanitarian law to come into effect. (To read more about non-international armed conflicts and the status of the conflict within Syria, see my previous post classifying the situation here). Accordingly, any military action taken by one nation against another nation may produce of an international armed conflict even if the belligerent nations do not make a formal declaration of war.
Some however, have argued that not every use of force brings into application IHL principles per se. Instead, some violent military exchanges may simply be “‘incidents’ falling short of an armed conflict.” Gary Solis, retired U.S. Marine Crops Lieutenant Colonel and Adjunct Professor at Georgetown University Law Center, posits that the question does not turn on the use of force alone, but instead on the intention of nations involved in the conflict. According to Solis, if nations intend to engage in an armed conflict, then IHL would apply. Solis cites a number of historical examples to highlight this point, arguing that in some cases, governments have been unwilling to label military engagements “armed conflicts” or “wars” even if they are protracted and violent.
Proponents of this view may point to statements made by the Turkish and Syrian leadership to illustrate a lack of intent in the present situation. For example, after the passage of the authorization for use of force, Turkey’s Deputy Prime Minister Besir Atalay reassured observers that “[t]his is not a war mandate. It is a measure for deterrence”. Moreover, Ibrahim Kalin, a senior adviser to Turkey’s Prime Minister Recep Tayyip Erdogan, announced that “Turkey has no interest in a war with Syria.” Finally, reports indicate that the Syrian government has apologized for the attack and pledged that “the incident will not be repeated.”
Such a criterion however, blurs the line between jus in bellum (justifications for war) and jus in bello (conduct in war) considerations. IHL is not concerned about why nations decide to engage in hostilities, but simply the regulation of the means and methods used by nations in hostilities. The issue of intent and the labels nations choose to describe a military dispute are political, not legal considerations. There are a number of political reasons why nations may be unwilling to classify a limited military engagement as an “armed conflict” or “war”. Such definitive labels may compel a nation to sever diplomatic relations with hostile countries. Although a state of conflict might exist between two countries, they may retain extensive trade relations. Identifying a dispute as a “war” may thus have far reaching consequences that nations are unwilling to accept. Moreover, declarations of war create a perception that hostilities will continue for an extended duration and may become more intense, making it increasingly difficult to resolve a dispute without resort to the full exertion of military force.
Turning again to the black letter law, the commentary to Article 2 of the Geneva Conventions supports the view that any use of force by one nation resulting in the retaliatory use of force by the aggrieved nation, triggers the application of IHL regardless of the designation nations give to a dispute. In relevant part, the commentary suggests:
It remains to ascertain what is meant by “armed conflict”. The substitution of this much more general expression for the word “war” was deliberate. One may argue almost endlessly about the legal definition of “war”. A State can always pretend, when it commits a hostile act against another State, that it is not making war, but merely engaging in a police action, or acting in legitimate self-defence. The expression “armed conflict” makes such arguments less easy. Any difference arising between two States and leading to the intervention of armed forces is an armed conflict within the meaning of Article 2, even if one of the Parties denies the existence of a state of war. It makes no difference how long the conflict lasts, or how much slaughter takes place. The respect due to human personality is not measured by the number of victims. Nor, incidentally, does the application of the Convention necessarily involve the intervention of cumbrous machinery. It all depends on circumstances. If there is only a single wounded person as a result of the conflict, the Convention will have been applied as soon as he has been collected and tended, the provisions of Article 12 observed in his case, and his identity notified to the Power on which he depends. All that can be done by anyone: it is merely a case of taking the trouble to save a human life!
This commentary makes clear that there is no requisite duration or intensity of hostilities in the context of an international armed conflict. The military conflict between Syria and Turkey thus falls squarely within the law of armed conflict paradigm. This conclusion is further evidenced by the authorization for the use of military force and statements made by Prime Minister Erdogan. Early this morning, the Prime Minister announced that “[Turkish] armed forces on border region (sic) have given the required response in line with the rule of engagements. Targets in Syria, which were detected by radar, were shot by shelling” [emphasis added]. The Prime Minister further noted that “Turkey will never remain unresponsive against these sorts of provocations of Syrian regime within the framework of rules of engagement and international law“ [emphasis added]. These statements reflect the awareness by the Turkish government that the use of military force must comply with the laws of armed conflict. Therefore, regardless of the political statements made by Turkish or Syrian leadership to the contrary, and notwithstanding the limited scope and duration of the dispute, the situation between Turkey and Syria is an international armed conflict.
 Kadir Celikcan, Mortar from Syria Kills Five Family Members in Turkey, Reuters, Oct. 3, 2012 available at http://www.reuters.com/article/2012/10/03/us-syria-crisis-turkey-mortar-idUSBRE8920VV20121003.
 Bassem Mroue and Suzan Fraser, Turkey and Syria Trade Artillery Fire for 4th Day as Assad Regime Warns it will ‘Crush’ Rebels, Associated Press, Oct. 6, 2012, available at http://www.theprovince.com/news/Staterun+agency+Turkish+artillery+return+fire+Syria+fourth+after/7353272/story.html.
 Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 1949, Art. 2. (Geneva Convention I).
 Gary D. Solis, The Law of Armed Conflict; International Humanitarian Law in War, (Cambridge University Press, 2010), 151-52.
 Turkey Authorizes Military Operations in Syria, Says No Intention of War, Todays Zaman, Oct. 4, 2012 available at http://www.todayszaman.com/newsDetail_getNewsById.action?newsId=294241.
 Id.; see also U.S. Sees Turkish Response to Syria as Appropriate, Proportionate, Reuters, Oct. 4, 2012 available at http://reuters.com/assets/print?aid=USBRE89316L20121004.
 Convention (I) for the Amelioration of the Conditions of the Wounded and Sick in Armed Forces in the Field, 1949, Commentary, available at http://www.icrc.org/ihl.nsf/COM/365-570005?OpenDocument.
 Turkey Strikes Syria Again After Mortar Shells Falls in Southern Turkey, Balita, Oct. 6, 2012 available at http://balita.ph/2012/10/06/turkey-strikes-syria-again-after-mortar-shell-falls-in-southern-turkey/.