Russians may have a strong case in Turkish shootdown

http://thehill.com/blogs/pundits-blog/international/261300-russians-may-have-a-strong-case-in-turkish-shootdown

The shootdown of the Russian Su-24 bomber by Turkish F-16s raises a number of critical issues under international law that the U.S. needs to carefully navigate. This is especially so since the result of the Turkish action was the apparently illegal killing by Syrian rebels of one of the Russian aircrew, as well as the possibly unlawful death of a Russian marine attempting to rescue the downed aviators.

Article 51 of the U.N. charter permits the use of force in the event of an "armed attack." However, in a 1986 case, the International Court of Justice concluded that a "mere frontier incident" might constitute a breach of the U.N. charter, but did not necessarily trigger the right to use force absent a showing that the attack was of a significant scale and effect. Most nations also accept that states threatened with an imminent attack can respond in self-defense so long as they did not have under the circumstances "any means of halting the attack other than recourse to armed force," as noted by Leo Van den hole in the American University International Law Review.

The problem here is that the Turks are not asserting that any armed attack took place or, for that matter, that any armed attack was even being contemplated by the Russians. Instead, in a letter to the U.N., the Turks only claimed that the Russians had "violated their national airspace to a depth of 1.36 to 1.15 miles in length for 17 seconds." They also say that the Russians were warned "10 times" (something the Russians dispute) and that the Turkish jets fired upon them in accordance with the Turks' "rules of engagement." Of course, national rules of engagement cannot trump the requirements of international law. Moreover, international law also requires any force in self-defense be proportional to the threat addressed.

Thus, the legal question is this: Is a mere 17-second border incursion of such significance and scale as to justify as "proportional" the use of deadly force as the only recourse — particularly where there is no indication that the Russians were going to actually attack anything on Turkish soil?