Authorizing Force: A Review of Turkish, Dutch and French Action

As the number of states using military force against ISIS in Syria and Iraq have increased, a series of domestic authorizations have emerged from their national executives and parliaments. The legitimacy of the use of force under domestic and international law retains particular symbolic importance given the perception of legitimacy deficits in controversial cases such as NATO’s 1999 Kosovo campaign and the second Iraq war. Examining the specificity of various domestic authorizations shows a significant (if not unexpected) variety in state practice, and these differences may function to de facto limit the use of force by particular states. The challenge of these differences may be all the more cogent when states operate in a multinational force context where various participants function under different constraints in their operational capacities.  The authorizations underscore the necessity of domestic processes to garner the symbolic capital that states need to legitimize the use of force outside their territories.

Turkish Authorization

Overall, it seems clear that Turkey views its authorization as an opportunity to continue prioritizing the overthrow of the Assad regime. As the New York Times reports, “Mr. Erdogan told his Parliament on Wednesday that Turkey would not allow its allies to use its military bases or its territory to fight the militants unless the overthrow of Mr. Assad remained a priority.” There is an equal salience to long-standing concerns about Turkey’s long-standing internal struggles with the Kurdistan Workers’ Party (PKK).  Authorization is also linked to the Turkish government’s recent insistence on establishing a safe/buffer zone inside Syria to stem the influx of refugees as well as the institution of a no-fly zone.

Content of the Turkish Authorization

Prior to Turkey’s Oct. 2 authorization, which passed parliament with a vote of 298-98, the Turkish government had two separate authorizations, one for cross-border operations in Iraq and one for cross-border operations in Syria. The Oct. 2 motion serves as an extension of these current authorizations, combines them into one, and broadens the scope of authorized activities. The Hurriyet Daily News reported on October 2:

Turkish troops are currently authorized by Parliament to operate across the border with Iraq to defend Turkey against the PKK. A second motion authorizes cross-border defense against the forces of Syrian President Bashar al-Assad. Today’s session was originally aimed at extending the term of existing motions on Iraq and Syria, set to expire on Oct. 4 and 17, respectively. The government has decided to combine authorization for action related to Iraq and Syria in a single motion.

Essentially the new mandate for military action is broader and more open-ended replacing a narrower earlier authorization simply facilitating Turkish troops to retaliate across the border against attacks.  The language of the new authorization is framed in terms of broader national security needs, and Parliament was expressly asked to give government a freer hand, to avoid the need to come back to the chamber for permission should military needs escalate suddenly.  Turkish Deputy Prime Minister Bülent Arınç has opined that the mandate includes permission to engage in military action abroad and allows opening Turkish bases to Foreign troops.  However, actual use of such bases is proving difficult secure as Turkish officials refute their capacity enable foreign military needs in negotiations with the US on usage. This latter provision is particularly sensitive in Turkey and may explain why the authorization was sought in a low key late night parliamentary debate.

Targets of the Authorization
Notably, the authorization does not identify ISIL as the only target of the military action. Instead it refers to “all terrorist groups in Iraq and Syria,” focusing specifically on the Kurdistan Workers’ Party (PKK). The PKK is the only organization expressly identified in the motion to Parliament.  The complexity of the authorization and the many agendas it manages is underscored by the fact that the situation claimed to have precipitated the need for Turkish action, according to the bill’s preamble, is that “the risks and threats to Turkey’s national security along our southern land borders have increased severely as a result of the developments during the last months. In the northern region of Iraq, armed PKK terror units preserve their presence.” On Oct. 14th, the Turkish air force bombed Kurdish positions in Turkey, complicating the picture in the region further, and inviting speculation that the goal of authorization under the guise of addressing the ISIL threat was in face to legitimize use of force against the PKK.  Moreover, the resolution does not use the term ‘foreign military forces,’  found in prior resolutions but rather refers to ‘foreign armed forces.’  This core dimension of the authorization underscores that it is far from clear that the United States and its allies have really got what they asked for. The authorization’s  mixed motives affirms that it is the decades-long insurgency against the Turkish Kurds (now also fighting ISIS on the ground) that continues to foreground Turkish motives in this setting. As the Bipartisan Policy Center notes:

 “The wording of the parliamentary motion reveals that Turkey has other motivations for authorizing military action in Syria, motivations that may make it a less productive partner. While presented as a package to combat IS, in line with its role as a partner in the U.S.-coalition, the motion also advances other Turkish goals: a broad-based mandate to combat the PKK and a focus on ousting the Assad regime.”

Parliamentary responses split along predicable lines.  The Nationalist Movement Party (MHP) lawmakers supported the motion along with the ruling party lawmakers. The main opposition Republican People’s Party (CHP) and the pro-Kurdish Peoples’ Democratic Party (HDP) opposed.

Dutch Authorization

The Netherlands has committed six F-16s, with two in reserve, and 250 military personnel and 130 trainers for the Iraqi military.  Authorization was not by parliamentary process but by cabinet decision.  Reports indicate that a cabinet meeting occurred on Sept. 24, during which ministers approved the military mission in Iraq. The mission will last between six and twelve months, and “comes at the request of Baghdad authorities.”

The Dutch House of Representatives explains the legal basis for the deployment and agrees the decision to “make fighter planes and military personnel available does not require approval from the House. However, according to article 100 of the Dutch Constitution, the Cabinet has the obligation to inform the House about the military deployment.” The information was given in the “Article 100 Letter” the House received on Sept. 24. The House met on Thursday, Oct. 2, to “discuss the details of the Dutch contribution”.

It appears there was a recorded (symbolic) vote taken at some point during the parliamentary session on Oct. 2, as it was reported that the MPs voted “by a large majority in favor of joining efforts to combat the Islamic State in Iraq.” Reports confirm the vote as approving a plan to “send six F-16 fighter jets to the region” and that two political parties, the Socialist Party and the PvdD, were the only parties in opposition to the plan.

In terms of the rationale behind the mission, reports indicate that the government articulate the Iraqi mission is legally justified “because the Iraqi authorities requested international help.” Prime Minister Mark Rutte has stated that the Netherlands will not be involved in military action in Syria without a UN mandate. The Dutch government that it will continue, in the Syrian context:

[to provide]… diplomatic help and humanitarian aid because there is no clear international mandate for military intervention and it has not been requested by the government.

Dutch forces made their first strikes in Iraq on Oct. 7.

French Authorization

France has played an active role in recent military action against ISIS in Iraq, including recent operational deployment in the Iraqi town of Amerli, pushing back ISIS fighters.  On Sept. 24th, the French Prime Minister Francoise Hollande, set out the rationale for French engagement in military action before the Senate. His speech underscored his procedural responsibilities under Article 35 of the French Constitution, which holds that when French forces are engaged outside of France, the government has a responsibility to inform Parliament as soon as possible.

Article 35 [War and Intervention of Armed Forces] (1) A declaration of war must be authorized by Parliament. (2) The Government informs Parliament of its decision to have the armed forces intervene abroad, at the latest three days after the beginning of said intervention. It details the objectives of said intervention. This information may give rise to a debate, which is not followed by a vote. (3) Where the duration of the intervention exceeds four months, the Government submits its extension to Parliament for authorization. It may ask the National Assembly to make the final decision. (4) If Parliament is not sitting at the end of the four-month period, it expresses its decision at the opening of the following session.

The language in the Prime Minister’s speech is omnipresent on the scale and substance of the threat posed by ISIS to European security broadly defined.

Un péril mortel s’étend au Moyen-Orient. La stabilité de la région et, au-delà, la sécurité du monde est menacée par le groupe terroriste Daech.

The Prime Minister set out what France perceives as an unprecedented triple threat. ISIS poses a menace for Iraq, portends a chaotic future for the region, and a threat to Europe and France.  For France, Hollande highlighted the risk presented by terrorist networks driving French citizens or others residing in France to enlist and fight.  From that point of mobilization would come the ability to strike the West, underscored by the kidnapping and killing of French citizen Herve-Pierre Gourdel. Hollande was at pains to underscore that France had a long history in the Middle East and thus has responsibilities and duties in the region (“nous avons des responsabilités et des devoirs envers cette région”). In parallel, with action in Iraq France is militarily engaged in Mali, Chad, Niger, and the Central African Republic.

Une triple menace … a. Une menace pour l’Irak. Depuis la chute de Mossoul, en juin dernier, Daech contrôle près du tiers du territoire irakien. Il maitrise les points de communication et les axes stratégiques. Il a accumulé d’immenses richesses lui permettant de recruter et de payer des supplétifs venant des quatre coins du monde, d’Europe, et de France … Aujourd’hui, la stabilité de l’Irak est menacée. Son existence même est en danger. b. Une menace pour la région. Daech est né dans le chaos syrien. Il a prospéré avec la complicité du régime de Damas et s’est nourri de l’inaction de la communauté internationale… Mais Daech ne s’arrêtera pas à l’Irak. Ses membres qui forment une « deuxième génération » de djihadistes après celle d’Al-Qaïda, sont, au-delà de ce pays, une menace pour tout l’Orient.  c. Une menace pour l’Europe et pour la France. Daech, c’est aussi une menace pour l’Europe et pour la France. J’ai souligné le risque que représentent ces filières qui conduisent des individus français ou résidant en France à s’enrôler et à partir combattre là-bas.

Rationalizing the use of force was also expressed in terms of classic self-defense and defense of others metrics.  The Prime Minister’s speech expressly affirmed that the Iraqi government had asked for military support from France, underscoring that the consent criteria for the use of force on another state’s territory was satisfied.  There was great emphasis on the coalition of states involved and sensitivity to charges of acting alone (“Les opérations aériennes en cours sont conduites en plein accord avec les forces armées irakiennes, et en coordination avec nos alliés”). Yet, France’s position is not without constraint. The Prime Minister was trenchant that no French ground troops would be deployed, and that any co-operation with or support to the regime of Bashar Al-Assad could not be countenanced.  He emphasized that the response to ISIS was multi-pronged across military, humanitarian and regulatory spheres.  Sensitive to the charges that French action would undercut a broader European response there was a gesture of recognition to the value of European defense and concerted European action, though little real progress can be measured here.

France’s justification for engaging force falls squarely into a classic formulation of immediate and direct threat, protection of another state consenting to the use of force on its territory, and a nod to humanitarian value in the protection of the security of the people of Iraq.

La décision prise par le Président de la République d’engager les forces armées en Irak, à la demande des autorités irakiennes, repose sur un triple objectif : Un objectif de sécurité, car nous sommes confrontés à une menace directe, immédiate et d’une gravité exceptionnelle: Un objectif de stabilité, car Daech met en péril la survie et l’unité de l’Etat irakien dans une région stratégique; Un objectif de crédibilité, car lorsqu’un pays ami nous appelle à l’aide, quand des populations innocentes sont massacrés, quand nos partenaires dans la région sont menacés, quand groupe terroriste d’une violence inouïe s’attaque à tout ce en quoi nous croyons, la France ne détourne pas le regard.

In sum, this brief survey of recent state practice is illustrative for the articulations of well-trodden tropes of legitimacy by states in their use of force.  There is a pointed articulation of commitments to legitimate decisions and practices, and the use of parliamentary procedure in particular as a means to discursively persuade domestic constituencies of the value of military action.  That persuasive power relies significantly on convincing national domestic processes to produce and sustain shared beliefs about the challenge posed by ISIS.  While there are long histories of lip service by states to justifications for using military force abroad, the ongoing commitment by these states to ‘procedural correctness’ is not insignificant and is important to producing a politics of reassurance to mitigate fears of overreach and action that runs against interest.  The symbolic capital generated by these authorizations is substantial and makes them a compelling micro site to watch legitimacy work in action by states.

 

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About the Author(s)

Fionnuala Ní Aoláin

U.N. Special Rapporteur on the Promotion and Protection of Human Rights and Fundamental Freedoms While Countering Terrorism. This article is written in the author's personal and academic capacity. Robina Chair in Law, Public Policy, and Society at the University of Minnesota Law School; Professor of Law at the University of Ulster’s Transitional Justice Institute in Belfast, Northern Ireland; Follow her on Twitter (@NiAolainF).