The Right to Use Anticipatory Self Defense Against Terror: The Tomb of Suleyman Shah and Turkey's Challenges

摘要

The Syrian crisis has created various threats and geopolitical implications for the globe. However, for Turkey in particular, the threat it faces from the number of non-state actors acting from within Syria is more complex than just a border security issue. Specifically, the threat against the Tomb of Suleyman Shah is unique to Turkey. Carrying part of Turkey's national heritage, the Tomb is a piece of sovereign Turkish property within Syria. Turkey's decision to defend it with military force as if it was defending something from within its own borders was legally sound. It is wholly unreasonable to expect Turkey to watch from afar as terrorist organizations within Syria get stronger and openly threaten the Tomb. Much like protecting an embassy, or a country's military or nationals abroad trigger the right of self-defense of a state, Turkey's actions are clearly legal even though it responded to non-state actors within the sovereign territory of a foreign state. Much like the Caroline case, Turkey did not need to wait for Syria's consent. However, despite the position this article has taken regarding Turkey's actions to protect the Tomb along with its current posture towards the failed state of Syria, it is time for the international community to formally agree that international law must evolve to the times. Those that remain skeptical must realize that international law must adjust to current challenges, and must be interpreted and applied in order to respond the threats of global terrorism. This proposal, that international law adapt and evolve with current times, is not contrary to customary international law and UN Charter. The very nature of custom and, at the time, formation of the UN Charter represent the fact that international law is adaptable to the times. Is the UN Charter not a formal agreement codifying the views of the international community to address to threat to global security at that time? In fact, a close study of how the international community has responded to terrorism should serve as a harbinger that we are in midst of another evolution in international law. Nevertheless, a conclusive remark does not prove the legality of the concept, since the matter does not seem to be resolved among scholars still polarized about the idea. It is time for the United Nations to step in and issue a binding decision specifically addressing the right of anticipatory self-defense against non-state actors.