On October 9, Turkey commenced operation “Peace Spring” in northeast Syria, in the de facto autonomous region of Rojava. In justification of its operation, Turkey advanced several legal arguments. Chiefly, it invoked the right to self-defense as enshrined in Article 51 of the UN Charter against the “imminent terrorist threat” purportedly emanating from Kurdish-led armed groups in the area. These armed groups are collectively known as the Syrian Democratic Forces (SDF), but are led by the People’s Protection Units (YPG), considered by Turkey a terrorist group inseparable from its longtime foe, the Kurdistan Workers’ Party (PKK).  The plausibility of Turkey’s self-defense and related arguments has been critically addressed here and here. Also, critique is mounting of alleged atrocities committed by Turkish backed militias, and a humanitarian crisis is unfolding as tens of thousands flee the area. Unfortunately, the YPG’s reaction has also been marred by reports of indiscriminate mortar attacks on Turkish civilians.

Rather than engaging with these specific issues, here we wish to address one of Turkey’s main aims for the operation: to “facilitate” what Turkey describes as “the safe and voluntary return of displaced Syrians to their homes of origin or other places of their choice.” Turkey hosts a whopping 3.6 million Syrian refugees, and as stated by President Erdogan, it believes it would be able to move at least 1 million refugees to the area within Syria it intends to control. For this purpose, it promises to build dozens of new villages and towns.

This “resettlement plan” raises many questions in international refugee and human rights law (IHRL). We wish to highlight another, much less explored legal dimension: its lawfulness under the international law of occupation. This perspective is crucial since, in our view, while refugee law and IHRL emphasize the rights of those to be “resettled,” occupation law offers a more comprehensive treatment that addresses also the wrongfulness of the plan in relation to the local population in northeast Syria. As we explain below, this “resettlement plan” is unlawful on a number of grounds under the international law of occupation.

Turkey’s “Resettlement Plan” under the Law of Occupation

Indeed, Turkey seems well aware that resettling refugees – mostly from other regions in Syria – in predominantly Kurdish areas in the country’s northeast will be met with much criticism, both on grounds of policy and law. Facilitating the resettlement of millions in the area is bound to create tensions and conflicts over scare resources. Moreover, it would dilute the Kurdish demographic presence in the region, likely curtailing the possibility of any form of Kurdish-led political authority in the area. Anticipating such critiques, Turkey emphasizes the allegation, supported by NGO reports, that the Kurdish authorities in the area have previously displaced citizens belonging to several ethnic groups. On the Turkish view, therefore, the de facto Kurdish authorities have themselves altered the demography in the territory, and accordingly, resettling Syrian refugees would only “restore the demographic richness” in the area.

We find this explanation unpersuasive under the international law of occupation (we will explain below why Turkey should be considered an occupant in northeast Syria). Importantly, the unlawfulness of this plan remains true even if Turkey would not flat-out coerce the refugees to leave, but instead would only “facilitate” their movement (although, whether that would be the case is highly debatable).

This conclusion emanates from a basic tenet of the law of occupation: that occupation alone cannot confer sovereignty. Accordingly, the occupant does not possess the full powers of the legitimate sovereign and its rule is temporary in time and in scope. These principles are famously reflected in Article 43 of the Hague Regulations (1907): on the one hand, it entrusts the occupant with the duties and powers to restore and ensure public order in the territory; but on the other, it requires it to respect the legal (and physical) status quo ante (the so-called “conservationist principle”). The conservationist principle, at least on most views, prohibits measures aiming to radically transform the occupied territory (“transformative occupation”).

The Illegality of the “Resettlement Plan”

The resettlement plan, in its demographic aims, clearly has the character of a transformative occupation. Indeed, the unlawfulness of “demographic transformation” is also reflected in the specific prohibition, for instance, on the transfer of the occupant’s own citizens into the occupied territories. One of the rationales behind this prohibition is to prevent the occupant from radically altering the demography of the occupied territory. Since this is the objective of the prohibition, it remains in place even if the transfer is voluntary, but is induced or facilitated by the occupant. It’s on these grounds that Israel is frequently criticized for its settlements in the West Bank.

Granted, Turkey argues that it only aims to “restore” the demographic reality in the territory, not to transform it. Yet, reportedly, most of the refugees it seeks to resettle are from other regions in Syria. It is one thing for an occupant to allow the return of specific displaced individuals, or groups, to their homes; indeed, this might even be the occupant’s obligation under the duty to restore public order. It’s entirely different to facilitate the movement of hundreds of thousands of other people into the territory, even if purportedly to “restore” the demography there.

Indeed, the attempt to demographically engineer an area cannot but remind one of the crude collectivist logic of population transfer, with its deep history in the region. Crucially, even if the “demographic balance” in the area should be “corrected” (a very problematic notion in itself), it is not for a foreign occupant to carry this out. Redressing historical grievances is beyond its authority. Just as transformative occupation is unlawful, so is “restorative” occupation.

Last, to the extent that Turkey indeed plans vast construction of new towns and villages in the territory, this raises additional difficulties concerning the occupant’s power – as a temporary administrator –  to make permanent infrastructural changes in occupied territory. While there is some support (see pp. 72-78) for the notion that in cases of prolonged occupation the authority of the occupant to introduce such changes widens, this would hardly be applicable in the context of Turkey’s operation. First, and most important, the mere existence of such elaborate plans today is clear evidence that Turkey plans a long-term occupation ex ante, in contravention of the principle that occupation should be temporary and tied to concrete security considerations. In other words, the resettlement plan, in itself, would become a pretext for maintaining a prolonged occupation, turning on its head the logic of temporariness that undergirds the law of occupation.

Second, even taking a view that supports the widening of the occupant’s authority to make infrastructural changes, this would only apply to changes enacted for the benefit of the local population in the occupied territory. This seems to exclude movement of others into the territory, even if they are nationals of the occupied state. Third, such plans necessitate interference with private and public property of massive proportions, very likely transgressing additional rules of the law of occupation.

Turkey’s Status as an Occupant

Of course, Turkey’s first line of defense against this analysis would be that it is not an occupying power in Syria to begin with. In a characteristically scathing speech, President Erdogan threatened to send millions of refugees to Europe if the operation in Syria would be labeled an “occupation.” Indeed, it is unclear whether Mr. Erdogan was referring to occupation in the legal sense, or – as is perhaps much more likely –  to its negative political connotations. Be that as it may, it would be hard-pressed to argue that Turkey would not become – if it hasn’t already – an occupying power in certain areas in northeast Syria.

Under international law, an occupation requires non-consensual, effective control over foreign territory. Mr. Erdogan’s claims notwithstanding, the Turkish Defense Minister recently admitted that Turkey is “taking control” of the region; and in its joint “cease-fire” statement with the United States, Turkey conceded that the “safe zone” would be “controlled by the Turkish Forces.” Moreover, this control is undoubtedly – at least in the time being – non-consensual: Syria made clear that it “condemns in the strongest terms” the Turkish operation, and vowed to resist it. Additionally, although Turkey is likely to delegate much of its ground operations to Turkish-led Syrian Forces, the level of control it exercises over these forces seems to satisfy the “overall control” standard for attribution of the conduct of those non-state armed groups to Turkey. That is to say, on most views, the relationship is sufficient to create an occupation by proxy, should these groups acquire control over the territory.

In sum, the law of occupation is the fitting framework to analyze the situation in northeast Syria, both concerning the general Turkish obligations towards the local population, and specifically regarding the implications of its resettlement plan. It is crucial that once Turkey acquires control over the territory (if it hasn’t already), international actors invoke this body of law at the earliest opportunity.

IMAGE: AKCAKALE, TURKEY – OCTOBER 12: People hold a Turkish flag as they give their support to the Turkish military during the deployment of tanks to Syria on October 12, 2019 in Akcakale, Turkey. The military action is part of a campaign to extend Turkish control of more of northern Syria, a large swath of which is currently held by Syrian Kurds, whom Turkey regards as a threat. (Photo by Burak Kara/Getty Images)