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Kurdish Media, UK
Nov 10 2006
Possibilities of prosecuting Turkish leaders for crimes against
humanity and war crimes - VII
11/9/2006 KurdishMedia.com - By Karim Salih
Part VII:
C) International tribunal:
Since war crimes and crimes against humanity are crimes against
international law, international courts, according to Cassese, `are
the most appropriate bodies to pronounce on them'. [352] The Security
Council which has responsibility to address matters of international
peace and security pursuant to its power under Chapter VII of the UN
Charter may establish, as it has done in both ICTY and ICTR cases, an
international criminal tribunal for the prosecution of persons
responsible for serious violations of international law committed in
Turkey (ICTT) as a subsidiary organ of the UN. [353]
While the Security Council is not expected to handle relatively minor
conflicts, it is competent under the UN Charter to deal with
international crises that are likely to threaten international peace
and security. [354] As the establishment of ICTR indicates a conflict
does not have to be of truly international character to trigger the
Security Council action. Though the strife was internal, the Security
Council viewed large scale and brutal human rights violations in
Rwanda as a threat to international peace and security. The alleged
massive indiscriminate use of force against civilians, the burning
and depopulation of almost entire villages of the South-east and
forcible displacement of 2.5 - 3 million persons coupled with
credible accusations of state involvement could be considered as
justifying the need for them to be adjudicated by an international
institution. [355]
The military operations of the Turkish armed forces are not confined
within international borders of Turkey. The alleged atrocities
perpetrated by Turkish army against the Greek population of the
northern part of Cyprus following the 1974 invasion are of purely
international nature where international institutions appear to be
the only appropriate bodies to adjudicate on them. [356]
Due, in particular, to the transnational nature of the Kurdish
question in the Middle East and the failure of Turkish military
solution to that question in Turkey, [357] the armed conflict between
PKK - Turkey has inherently the potential to spill over and endanger
the international peace and security in the whole region, as it
already led Turkey to the brink of war with Syria in 1998. [358] In
order to keep the internal armed conflict in the country under
control, Turkey also consistently threatens the use of force in
breach of Article 2 of the UN Charter against the Iraqi Kurds in case
of dissolution of Iraq, [359] something itself not prohibited by
international law as manifested by the dissolution of former Soviet,
Czechoslovakia and Yugoslavia in early 1990s and the independence of
Montenegro from Serbia and Montenegro in May 2006. [360] The Turkish
military incursions into Iraqi Kurdistan since March 2003, [361]
which have been carried out with no formal Iraqi consent and despite
the opposition of Iraqi Kurdish leaders, [362] not only violate
Article 2 of the UN Charter, but also tend to destabilise Iraqi
Kurdistan, the only safe and stable part of Iraq since 2003 which is
seen as a crucial ingredient for the stability of the whole Iraq.
[363]
The Security Council is not only not precluded by the principled idea
of legalism from creating an ICTT but it is its responsibility to
find ways to ensure that `the ongoing serious violations of
international law' [364] in Turkey are halted and one of the ways, if
not `the only way', [365] to do this, is by prosecuting persons
responsible for such violations. [366] In addition to contributing to
the restoration of peace in Turkey, a country whose stability is
regarded as a key to peace and security in the Middle East and East
Europe, [367] much like the ICTY and ICTR, an ICTT can play `an
important role in maintaining international peace and security' in
Turkey `by assisting with the establishment of civil society, under
the rule of law, which is necessary to bring about lasting peace'.
[368]
An ICTT can be permitted by the Security Council pursuant to its
Chapter VII powers to prosecute incumbent Head of State for
international crimes. [369] Its ability to indict, prosecute and
punish all persons, regardless of their former or current political
or military posts, [370] for crimes against international law can
contribute to ending the ongoing conflict. ICTT will be able to bring
to justice Turkish generals suspected of war crimes or sponsoring, or
having implicated in, underworld criminal gangs that allegedly
committed thousands of extra judicial killings of political opponents
since early 1970s, who otherwise practically immune from prosecution
unless by license from the general chief of staff and before military
courts, as manifested by Susurluk affair and Semdinli bookshop
bombing case. The only way to end violence unleashed by `criminal
elements who are claiming leadership', as John Shattuck strongly
asserts, [371] is `to bring to justice those responsible for
unleashing it'. [372]
Even initiating the process of bringing war criminals to justice -
indicting them with war crimes - would turn them into pariahs within
the international community unable to travel without fear of being
arrested. [373] As ICTT, like ICTY and ICTR, may not hold trials in
abstentia, for indicted defendants who fail to surrender, the
prosecutor could present the indictment to a judicial panel, who may
issue an arrest warrant that if ignored will become an international
arrest warrant. [374] An ICTT, being created by the Security Council,
its arrest warrants will be binding on all member states who will be
obligated to surrender the wanted suspects. [375] Additionally, by
being created under Chapter VII, the Security Council can use
sanctions to enforce the decisions of ICTT. [376] Until the armed
conflict between the army and the PKK is halted, the prospect of
indictment and criminal trials for war crimes before an international
tribunal can have strong deterrent effect on foot soldiers as well as
the commanders of both parties who contemplate violating rules of
humanitarian law.
An impartial international tribunal is also better positioned to help
creating an accurate record of the Turkey's three year direct
military rule following the 1980 coup and twenty two years of armed
conflict. [377] There are so many unresolved injustices in recent
Turkish history which make existence of a true and credible record
imperative in order to confine blame in guilty individuals rather
than being shifted to entire communities. Criminal trials through
interrogating evidence in a procedurally fair setting and applying
high standards of proof can distinguish guilt from innocence in the
specific cases in question. [378] They can unearth information about
the work of perpetrators and the organisers of brutalities like the
1996 Guclukonak Massacre [379] and establish whether the state or PKK
was involved in the `mystery killings', disappearances and hiring
death squads.
The scale of the atrocities and their ambiguity merit being
adjudicated by impartial criminal tribunals to both unravel the
mysteries and punish the perpetrators. The Raboteau Massacre trial in
Haiti in 2000 is the case in point here. [380] Only through rigorous
interrogation the criminal trial uncovered the internal organization
and operation of the FRAPH death squad and the fact it is being
sponsored by the state. [381] After lengthy proceedings, in November
2000, a Haitian court found sixteen former soldiers and
paramilitaries guilty of participating in the 1994 Raboteau Massacre,
and convicted further thirty-seven in absentia, including the entire
military high command of the former military regime and the heads of
FRAPH death squad. [382]
Such a record can be most beneficial in the case of Turkey where
appears to be a culture of systematic denial and falsification of the
past as well the ongoing events. [383] Fair criminal trials can help
establishing truth with respect of the identity of those masterminded
and organised the destruction of thousands of villages which subsumed
so many crimes and human sufferings [384] as the government maintains
that most village destruction cases was perpetrated by the PKK. [385]
The responsibility is so obscured that at the height of village
destruction in 1996 Prime Minster Ciller tried to convince others
that the helicopters destroyed villages in the South-east belonged to
the PKK, a guerrilla group not known for having an air force. [386]
Such claims and counter claims if remained unresolved may cause even
greater confusion and tension among future generations of Kurds and
Turks and become obstacle to laying firm foundations of a lasting
peace.
Prosecutorial accountability is indeed a duty equally owed to the
future generations. By creating an accurate and credible record of
past events, fair trials can prevent expansion of their accounts into
exaggerated mythologies exploited by nationalists to instil fear in
the other ethnic groups. [387] The ongoing controversy over the
mass-murder of one and half millions Armenians and the expulsion of
the survivors from their ancestral homeland, should at least serve as
a lesson. In the absence of an authoritative record obtained from
judicial proceedings applying stringent evidential standards, still
recognition of the massacres as genocide risks diplomatic sanctions
[388] or prosecution. [389]
Criminal trials by a truly independent and impartial tribunal may
turn demands for vengeance into `institutionalized and fair
proceedings for assessing guilt'. [390] Dissatisfied and disappointed
communities are more likely to `take justice into their own hands'
and turn to retaliation if victims' need to see justice and
accountability for gross abuses of their human rights were not
satisfied by fair trials, [391] as it is evident by the events
following World War I in the case of the disappointed Armenians.
[392] In deed, `the only civilised alternative' to the desire for
revenge, as ICTY articulates `is to render justice: to conduct a fair
trial by a truly independent and impartial tribunal and to punish
those found guilty'. [393] Rather than an obstacle, criminal
accountability may make reconciliation and lasting peace more
achievable. [394] By clearly identifying and punishing the guilty
individuals -generals, police chiefs, leaders and the organisers,
claims of collective guilt that associate crimes committed in
internal conflicts such as in Turkey may be avoided. [395]
In a violence-ridden country where state involvement in hiring
criminal gangs to kill political opponents is spoken of in the
parliament as certain as thing as `we all know it', [396] criminal
prosecutions by impartial bodies seem essential to re-establish moral
standards and basic criteria of legitimate behaviour. [397]
Punishment of the guilty individuals can serve to end a `culture of
impunity' [398] and install rule of law in Turkey by making it clear
that violations on human life and dignity are not only criminalised
by law, but subject to punishment. [399]
Accountability also addresses the victims' needs for recognition and
justice which must not be overlooked. By judicially condemning the
acts perpetrated against the victims, in their millions since 1980,
the international community reaffirms their dignity and value and may
contribute in the recovery of those survived violations of their
human rights. [400]
Arguments against prosecutorial approach may include that criminal
trials could serve to foster resentment among the majority Turkish
population and further civil conflict, and may have the potential to
undermine the legislative and political efforts that otherwise would
gradually resolve the Kurdish question and eliminate human rights
abuses. Exacerbating the civil conflict and EU conditionality effect
arguments may have little validity as the level violence is
increasing [401] and the reforms are practically stalled. [402] The
majority resentment, if assuming that is factually correct despite
some evidence to the contrary, [403] may pose immense practical
challenge to pursuing accountability. [404] However, it will neither
legitimise the wrongs appear to have been committed by the army and
the `deep state' Kemalists as the German youth's support did not do
so to the Nazi crimes nor should it thwart any efforts to bring
guilty individuals to justice especially considering accountability's
educative effects. [405] When in a society `inverted morality' has
elevated otherwise `deviant crimes' to the highest expression of
group loyalty, international stigmatization of criminal conduct, as
Akhavan asserts, may have far-reaching influence, changing the rules
of `legitimacy' and promoting post-conflict reconciliation. [406]
Even if establishing an ICTT could not serve as a model alternative
to controversial military interventions to deal with tyrannical and
authoritarian regimes in the region, it will hopefully have deterrent
effect by demonstrating the consequence for violations of
international law and the variety of international community's
weapons. Pursuing individual criminal accountability in Turkey and
ensuring that the defendants, the army commanders as well as PKK
leaders, receive fair trial may command popular legitimacy in the
eyes of Middle Eastern and wider Islamic countries and may serve a
valuable lesson for these societies to agree to disagree and to use
non-violent means to accommodate differences. [407]
Given that already ICTY and ICTR together consume nearly a quarter of
a billion dollars each year, [408] operation of another ad hoc
tribunal may prove too expensive for UN. [409] An international
tribunal also may take long time to be operational. [410] These all
may prompt a second possible scenario: expanding the ICTY
jurisdiction, by the Security Council, to cover international crimes
committed in Turkey. The expansion scenario is an attractive option
inasmuch as it saves time and money and retains the advantages of an
ICTT especially being staffed by international experts able to apply
international law and clarify hazy areas of law. [411]
Given the political complications of enforcing international criminal
law in Turkey, [412] an impartial and independent investigatory
commission can be employed to specifically identify perpetrators and
circumstances of the violations that could be a precursor to criminal
trials. Although this approach would not discharge the prosecutorial
duty, it may represent a good first step, especially if created by
the Security Council under Chapter VII similar to the case of former
Yugoslavia. [413] An attractive alternative to UN sponsorship for
Turkey, as a member state of the Council of Europe and a candidate
country of EU, can be an investigatory commission, created by the
Security Council and sponsored by the EU.
While both options are likely to ensure greater neutrality,
credibility, security to witnesses, financial support and
international attention, [414] the latter option which will be the
EU's first involvement in such type of work, seems more effective
given the potential stick and carrot policy involved.
Notes
352. Cassese, 2001.
353. For a thorough analysis of the work of ICTY since its inception,
see Bassiouni, Cherif M., The Law of the International Criminal
Tribunal for the Former Yugoslavia, (Irvington-on-Hudson, NY:
Transnational Publishers, 1996).
354. See Charter of the United Nations, , (last visited 11 September
2006) ; Cassese 2001.
355. See, Tadic Interlocutory Appeal, para. 58; Simon, Jan-Michael,
`State-sponsored mass violence: Criminal Accountability and
Reconciliation', Max Planck Institute for Foreign and International
Criminal Law - Freiburg, Germany, September/October 2002; Cassese,
Antonio, `The International Criminal Court: Some preliminary
reflections", European Journal of International Law, Vol. 10, 1999,
pp. 144-71, at 164.
356. Tadic, Interlocutory Appeal, para. 58.
357. TDN, Kurdish impasse, supra note 4.
358. Kerim Yildiz and Mark Muller, `the EU, Turkey and the Kurds', EU
- Turkey Civic Commission, Brussels 2004, (Second International
Conference on Turkey, the Kurds and the EU - The European Parliament,
Brussels, 22-23 November 2004 - Conference Papers).
359. Office of Prime Minister: Directorate of General of Press and
Information, `Erdogan: `Those Talking about Dividing Iraq are Playing
With Fire', 15 January 2004 (Erdogan warned that `Iraqi Kurdish
groups are playing with fire. Turkey won't let them divide Iraq').
360. Musgrave, Thomas D., Self Determination and National Minorities
(Oxford: Oxford University Press, 2000), p. 193.
361. Turkish Daily News, `Turkish army entered and pulled out of
Iraq, say reports', TDN Ankara, 29 July 2006.
362. Cihan News Agency, `Saddam-era Agreements with Turkey Not
Valid', Zaman, Ankara, 14 July 2006.
363. Hawley, Caroline, `Iraqi Kurdistan a world away from war', BBC
News, Baghdad, 12 August 2005.
364. United Nations Security Council Resolution 827 on Establishing
an International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed in
the Territory of the Former Yugoslavia, S.C. res. 827, 48 U.N. SCOR,
U.N. Doc. S/RES/827 (1992).
365. Tenth Annual Report of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
former Yugoslavia since 1991, U.N. GAOR, 58th Sess., Agenda Item 55,
U.N. Doc. A/58/297-S/2003/829 (2003), para. 348: (`[ICTY] trials have
sent a powerful message that only through justice can all the peoples
of former Yugoslavia achieve reconciliation and create thriving
societies.' [Emphasis added.])
366. First Annual Report of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
former Yugoslavia Since 1991, U.N. GAOR, 49th Sess., Agenda Item 152,
U.N. Doc. A/49/342-S/1994/1007 (1994) , paras. 11-15; also see
subsequent annual reports, 1995 Report para. 199; 1996 Report,
para.5; 1997 Report, para. 4; 1998 Report. para. 5.
367. Çakmak, 2003, pp. 63-90, at 63.
368. Sixth Annual Report of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
former Yugoslavia since 1991, U.N. GAOR, 54th Sess., Agenda Item 53,
U.N. Doc. A/54/187-S/1999/846 (1999), para. 212, [emphasis added].
369. Kambanda, supra 324, para. 40.
370. Ibid.
371. Issues of Democracy, USIA Electronic Journals, `Bringing
Violators to Justice: An American View', An Interview with John
Shattuck, Issues of Democracy, USIA Electronic Journals, Vol. 1, No.
3, May 1996, pp. 5-9, at 8.
372. Ibid.; for a relevant report in this contexts, see Human Rights
Association of Turkey (IHD), `What happens if those who should
maintain Democracy, Freedoms and Human Rights make call for
Repression and Violence?' Press Release, 06 April 2006; Human Rights
Association of Turkey (IHD), `Attacks and Lynching Attempts Occurring
Every Coming Day are Threatening Social Peace and Democracy', Press
Statement, Ankara, 07 September, 2005.
373. Hildreth, Brian T., `Hunting the Hunters: the United Nations
Unleashes Its Latest Weapon in the Fight Against Fugitive War Crimes
Suspects - Rule 61', Tulane Journal of International and Comparative
Law, Vol. 6, No. 1, Spring 1998, pp. 499-524.
374. Ibid; this procedure, which is called `super indictment', is
provided by Rule 61 of the Rules and Procedures of the ICTY has,
since its first use on 20 October 1995, become part of ICTY strategy.
375. Article 25 of the UN Charter.
376. Article 41 of the UN Charter.
377. Kritz, 2002, p. 23.
378. Ibid.
379. AI the Guclukonak Massacre, supra 365.
380. Concannon, Brian. Jr., `Justice for Haiti: The Raboteau Trial',
Institute for Justice and Democracy in Haiti, 2001.
381. Ibid.
382. Ibid.
383. Öktem, Kerem, `Return of the Turkish `State of Exception','
Middle East Report Online, 3 June 2006.
384. Ayata, 2005, pp.5-42, at 08, 10, 40-42.
385. United States Department of State, `Report on Allegations of
Human Rights Abuses
by the Turkish Military and on the Situation in Cyprus', Bureau of
European Affairs, 01 June 1995 (see the Turkish official response to
the allegations made by the villagers and journalists).
386. AI, No security, supra 91, p. 4 citing Cumhuriyet, 28 October
1994; Kirisci and Winrow, 1998, p. 131 citing Hurriyet, 28 October
1994.
387. One of the few items available at the English version of the
official website of the Turkish Parliament (TBMM) is a `documentary'
book on Armenian genocide of the Turks in 1914-18: `Archive Documents
about the Atrocities and Genocide inflicted upon Turks by Armenians'
, compiled by Grand National Assembly of Turkey Board of Culture,
Arts and Publications, - Publication No. 93, Ankara - 2002, , (last
visited 10 September 2006).
388. Shawl, Jeannie, `Turkey threatens sanctions if France adopts
Armenian genocide law', Jurist - Legal News and Research, 15 May
2006.
389. Human Rights Watch, `Turkey: Pamuk Trial Tests Commitment to
Free Speech', 08 December 2005.
390. Kritz, 2002, p. 24.
391. Linton, Suzannah, `Prosecuting Atrocities at the District Court
of Dili', Melbourne Journal of International Law, Vol. 2, 2001, pp.
414-58, at 458.
392. Cassese, 2001. Probably the most famous revenge case was the
assassination of Talaat Pasha in Berlin in 1922 by a young Armenian
student, on whose trial Raphael Lemkin, the lawyer who later coined
the word `genocide', commented: `It is a crime for Tehlirian to kill
a man, but it is not a crime for his oppressor to kill more than a
million men'; quoted in Cooper, Belinda and Taner Akcam, `Turks,
Armenians, and the `G-Word'', World Policy Journal, Fall 2005, pp.
81-93, at 84.
393. First Annual Report ICTY, supra 432, paras. 11-15.
394. Huyse, Luc, `The Process of Reconciliation', in David Bloomfield
and others, (Ed.), Reconciliation after Violent Conflict, (Stockholm:
International Institute for Democracy and Electoral Assistance,
2003), pp. 19-22, at 21.
395. Fatic, Aleksandar, Reconciliation via the War Crimes Tribunal?
(Aldershot: Ashgate, January 2000), p. 2.
396. Supra, note 138 and the accompanying text.
397. Fatic, 2000, p. 2.
398. AI An end to torture and impunity is overdue, supra note 85; US
DOS 1999, supra note 64: (`a climate of impunity').
399. Kritz, 2002, pp. 31, 35.
400. Kritz, 2002, p. 23.
401. Turkish Daily News, `Turkey unveils tragic toll of mounting PKK
attacks', TDN Ankara, 11 September 2006; TDN, Kurdish impasse, supra
note 4.
402. Financial Times, Editorial, `Turkey's penal code', 22 September
2006 (stating that `the government's refusal to repeal Article 301 is
not only a failure of leadership but a capitulation to rightwing
nationalists that is expanding their constituency'); Turkish Daily
News, `Reform bill put on hold', TDN Parliament Bureau, 22 September
2006.
403. CNN, `Landslide win for Islamic party in Turkey', 4 November
2002. (AKP is subscribed to Kemalism).
404. Mayerfeld, Jamie, `The Mutual Dependence of External and
Internal Justice: The Democratic Achievement of the International
Criminal Court,' Finnish Yearbook of International Law, Vol. 12, pp.
71-107, at 79.
405. Ibid, pp. 71, 79-80, 92, 107 (outlining the democracy promoting
role of international criminal tribunals and their educative values).
406. Akhavan, Payam, `Beyond Impunity: Can International Criminal
Justice Prevent Future Atrocities?' American Journal of International
Law, Vol. 95, No. 1, January 2001, pp. 7-31, at 7.
407. Ahmed, Nafeez, `Routing out the Opposition: The Comprehensive
Repression of Human Rights in Turkish Society', Islamic Human Rights
Commission, London, 2000, , (last visited 10 September 2006).
408. Schabas, William A., `International Tribunals for Yugoslavia and
Rwanda: Doing More Good than Harm' Ethnic Conflict Research Digest,
Vol. 3, No. 2, September 2000.
409. Both ICTY are ICTR are funded out of the UN's annual budget.
Ibid.
410. Kritz, Neil J., `War Crimes on Trial' ', Issues of Democracy,
USIA Electronic Journals, Vol. 1, No. 3, May 1996, pp. 20-8, at 22.
411. Ibid., p. 24.
412. For a discussion on enforcement of international law, see
Penrose, Mary Margaret, `Lest We Fail: The Importance of Enforcement
in International Criminal Law', American University International Law
Review, Vol. 15, No. 2, 2000, pp. 321-94, at 321.
413. The [United Nations] Commission of Experts, Established Pursuant
to Security Council Resolution 780 (1992), S/1994/674, 27 May 1994;
see supra note162.
414. Ratner, 2001, p. 230.
Nov 10 2006
Possibilities of prosecuting Turkish leaders for crimes against
humanity and war crimes - VII
11/9/2006 KurdishMedia.com - By Karim Salih
Part VII:
C) International tribunal:
Since war crimes and crimes against humanity are crimes against
international law, international courts, according to Cassese, `are
the most appropriate bodies to pronounce on them'. [352] The Security
Council which has responsibility to address matters of international
peace and security pursuant to its power under Chapter VII of the UN
Charter may establish, as it has done in both ICTY and ICTR cases, an
international criminal tribunal for the prosecution of persons
responsible for serious violations of international law committed in
Turkey (ICTT) as a subsidiary organ of the UN. [353]
While the Security Council is not expected to handle relatively minor
conflicts, it is competent under the UN Charter to deal with
international crises that are likely to threaten international peace
and security. [354] As the establishment of ICTR indicates a conflict
does not have to be of truly international character to trigger the
Security Council action. Though the strife was internal, the Security
Council viewed large scale and brutal human rights violations in
Rwanda as a threat to international peace and security. The alleged
massive indiscriminate use of force against civilians, the burning
and depopulation of almost entire villages of the South-east and
forcible displacement of 2.5 - 3 million persons coupled with
credible accusations of state involvement could be considered as
justifying the need for them to be adjudicated by an international
institution. [355]
The military operations of the Turkish armed forces are not confined
within international borders of Turkey. The alleged atrocities
perpetrated by Turkish army against the Greek population of the
northern part of Cyprus following the 1974 invasion are of purely
international nature where international institutions appear to be
the only appropriate bodies to adjudicate on them. [356]
Due, in particular, to the transnational nature of the Kurdish
question in the Middle East and the failure of Turkish military
solution to that question in Turkey, [357] the armed conflict between
PKK - Turkey has inherently the potential to spill over and endanger
the international peace and security in the whole region, as it
already led Turkey to the brink of war with Syria in 1998. [358] In
order to keep the internal armed conflict in the country under
control, Turkey also consistently threatens the use of force in
breach of Article 2 of the UN Charter against the Iraqi Kurds in case
of dissolution of Iraq, [359] something itself not prohibited by
international law as manifested by the dissolution of former Soviet,
Czechoslovakia and Yugoslavia in early 1990s and the independence of
Montenegro from Serbia and Montenegro in May 2006. [360] The Turkish
military incursions into Iraqi Kurdistan since March 2003, [361]
which have been carried out with no formal Iraqi consent and despite
the opposition of Iraqi Kurdish leaders, [362] not only violate
Article 2 of the UN Charter, but also tend to destabilise Iraqi
Kurdistan, the only safe and stable part of Iraq since 2003 which is
seen as a crucial ingredient for the stability of the whole Iraq.
[363]
The Security Council is not only not precluded by the principled idea
of legalism from creating an ICTT but it is its responsibility to
find ways to ensure that `the ongoing serious violations of
international law' [364] in Turkey are halted and one of the ways, if
not `the only way', [365] to do this, is by prosecuting persons
responsible for such violations. [366] In addition to contributing to
the restoration of peace in Turkey, a country whose stability is
regarded as a key to peace and security in the Middle East and East
Europe, [367] much like the ICTY and ICTR, an ICTT can play `an
important role in maintaining international peace and security' in
Turkey `by assisting with the establishment of civil society, under
the rule of law, which is necessary to bring about lasting peace'.
[368]
An ICTT can be permitted by the Security Council pursuant to its
Chapter VII powers to prosecute incumbent Head of State for
international crimes. [369] Its ability to indict, prosecute and
punish all persons, regardless of their former or current political
or military posts, [370] for crimes against international law can
contribute to ending the ongoing conflict. ICTT will be able to bring
to justice Turkish generals suspected of war crimes or sponsoring, or
having implicated in, underworld criminal gangs that allegedly
committed thousands of extra judicial killings of political opponents
since early 1970s, who otherwise practically immune from prosecution
unless by license from the general chief of staff and before military
courts, as manifested by Susurluk affair and Semdinli bookshop
bombing case. The only way to end violence unleashed by `criminal
elements who are claiming leadership', as John Shattuck strongly
asserts, [371] is `to bring to justice those responsible for
unleashing it'. [372]
Even initiating the process of bringing war criminals to justice -
indicting them with war crimes - would turn them into pariahs within
the international community unable to travel without fear of being
arrested. [373] As ICTT, like ICTY and ICTR, may not hold trials in
abstentia, for indicted defendants who fail to surrender, the
prosecutor could present the indictment to a judicial panel, who may
issue an arrest warrant that if ignored will become an international
arrest warrant. [374] An ICTT, being created by the Security Council,
its arrest warrants will be binding on all member states who will be
obligated to surrender the wanted suspects. [375] Additionally, by
being created under Chapter VII, the Security Council can use
sanctions to enforce the decisions of ICTT. [376] Until the armed
conflict between the army and the PKK is halted, the prospect of
indictment and criminal trials for war crimes before an international
tribunal can have strong deterrent effect on foot soldiers as well as
the commanders of both parties who contemplate violating rules of
humanitarian law.
An impartial international tribunal is also better positioned to help
creating an accurate record of the Turkey's three year direct
military rule following the 1980 coup and twenty two years of armed
conflict. [377] There are so many unresolved injustices in recent
Turkish history which make existence of a true and credible record
imperative in order to confine blame in guilty individuals rather
than being shifted to entire communities. Criminal trials through
interrogating evidence in a procedurally fair setting and applying
high standards of proof can distinguish guilt from innocence in the
specific cases in question. [378] They can unearth information about
the work of perpetrators and the organisers of brutalities like the
1996 Guclukonak Massacre [379] and establish whether the state or PKK
was involved in the `mystery killings', disappearances and hiring
death squads.
The scale of the atrocities and their ambiguity merit being
adjudicated by impartial criminal tribunals to both unravel the
mysteries and punish the perpetrators. The Raboteau Massacre trial in
Haiti in 2000 is the case in point here. [380] Only through rigorous
interrogation the criminal trial uncovered the internal organization
and operation of the FRAPH death squad and the fact it is being
sponsored by the state. [381] After lengthy proceedings, in November
2000, a Haitian court found sixteen former soldiers and
paramilitaries guilty of participating in the 1994 Raboteau Massacre,
and convicted further thirty-seven in absentia, including the entire
military high command of the former military regime and the heads of
FRAPH death squad. [382]
Such a record can be most beneficial in the case of Turkey where
appears to be a culture of systematic denial and falsification of the
past as well the ongoing events. [383] Fair criminal trials can help
establishing truth with respect of the identity of those masterminded
and organised the destruction of thousands of villages which subsumed
so many crimes and human sufferings [384] as the government maintains
that most village destruction cases was perpetrated by the PKK. [385]
The responsibility is so obscured that at the height of village
destruction in 1996 Prime Minster Ciller tried to convince others
that the helicopters destroyed villages in the South-east belonged to
the PKK, a guerrilla group not known for having an air force. [386]
Such claims and counter claims if remained unresolved may cause even
greater confusion and tension among future generations of Kurds and
Turks and become obstacle to laying firm foundations of a lasting
peace.
Prosecutorial accountability is indeed a duty equally owed to the
future generations. By creating an accurate and credible record of
past events, fair trials can prevent expansion of their accounts into
exaggerated mythologies exploited by nationalists to instil fear in
the other ethnic groups. [387] The ongoing controversy over the
mass-murder of one and half millions Armenians and the expulsion of
the survivors from their ancestral homeland, should at least serve as
a lesson. In the absence of an authoritative record obtained from
judicial proceedings applying stringent evidential standards, still
recognition of the massacres as genocide risks diplomatic sanctions
[388] or prosecution. [389]
Criminal trials by a truly independent and impartial tribunal may
turn demands for vengeance into `institutionalized and fair
proceedings for assessing guilt'. [390] Dissatisfied and disappointed
communities are more likely to `take justice into their own hands'
and turn to retaliation if victims' need to see justice and
accountability for gross abuses of their human rights were not
satisfied by fair trials, [391] as it is evident by the events
following World War I in the case of the disappointed Armenians.
[392] In deed, `the only civilised alternative' to the desire for
revenge, as ICTY articulates `is to render justice: to conduct a fair
trial by a truly independent and impartial tribunal and to punish
those found guilty'. [393] Rather than an obstacle, criminal
accountability may make reconciliation and lasting peace more
achievable. [394] By clearly identifying and punishing the guilty
individuals -generals, police chiefs, leaders and the organisers,
claims of collective guilt that associate crimes committed in
internal conflicts such as in Turkey may be avoided. [395]
In a violence-ridden country where state involvement in hiring
criminal gangs to kill political opponents is spoken of in the
parliament as certain as thing as `we all know it', [396] criminal
prosecutions by impartial bodies seem essential to re-establish moral
standards and basic criteria of legitimate behaviour. [397]
Punishment of the guilty individuals can serve to end a `culture of
impunity' [398] and install rule of law in Turkey by making it clear
that violations on human life and dignity are not only criminalised
by law, but subject to punishment. [399]
Accountability also addresses the victims' needs for recognition and
justice which must not be overlooked. By judicially condemning the
acts perpetrated against the victims, in their millions since 1980,
the international community reaffirms their dignity and value and may
contribute in the recovery of those survived violations of their
human rights. [400]
Arguments against prosecutorial approach may include that criminal
trials could serve to foster resentment among the majority Turkish
population and further civil conflict, and may have the potential to
undermine the legislative and political efforts that otherwise would
gradually resolve the Kurdish question and eliminate human rights
abuses. Exacerbating the civil conflict and EU conditionality effect
arguments may have little validity as the level violence is
increasing [401] and the reforms are practically stalled. [402] The
majority resentment, if assuming that is factually correct despite
some evidence to the contrary, [403] may pose immense practical
challenge to pursuing accountability. [404] However, it will neither
legitimise the wrongs appear to have been committed by the army and
the `deep state' Kemalists as the German youth's support did not do
so to the Nazi crimes nor should it thwart any efforts to bring
guilty individuals to justice especially considering accountability's
educative effects. [405] When in a society `inverted morality' has
elevated otherwise `deviant crimes' to the highest expression of
group loyalty, international stigmatization of criminal conduct, as
Akhavan asserts, may have far-reaching influence, changing the rules
of `legitimacy' and promoting post-conflict reconciliation. [406]
Even if establishing an ICTT could not serve as a model alternative
to controversial military interventions to deal with tyrannical and
authoritarian regimes in the region, it will hopefully have deterrent
effect by demonstrating the consequence for violations of
international law and the variety of international community's
weapons. Pursuing individual criminal accountability in Turkey and
ensuring that the defendants, the army commanders as well as PKK
leaders, receive fair trial may command popular legitimacy in the
eyes of Middle Eastern and wider Islamic countries and may serve a
valuable lesson for these societies to agree to disagree and to use
non-violent means to accommodate differences. [407]
Given that already ICTY and ICTR together consume nearly a quarter of
a billion dollars each year, [408] operation of another ad hoc
tribunal may prove too expensive for UN. [409] An international
tribunal also may take long time to be operational. [410] These all
may prompt a second possible scenario: expanding the ICTY
jurisdiction, by the Security Council, to cover international crimes
committed in Turkey. The expansion scenario is an attractive option
inasmuch as it saves time and money and retains the advantages of an
ICTT especially being staffed by international experts able to apply
international law and clarify hazy areas of law. [411]
Given the political complications of enforcing international criminal
law in Turkey, [412] an impartial and independent investigatory
commission can be employed to specifically identify perpetrators and
circumstances of the violations that could be a precursor to criminal
trials. Although this approach would not discharge the prosecutorial
duty, it may represent a good first step, especially if created by
the Security Council under Chapter VII similar to the case of former
Yugoslavia. [413] An attractive alternative to UN sponsorship for
Turkey, as a member state of the Council of Europe and a candidate
country of EU, can be an investigatory commission, created by the
Security Council and sponsored by the EU.
While both options are likely to ensure greater neutrality,
credibility, security to witnesses, financial support and
international attention, [414] the latter option which will be the
EU's first involvement in such type of work, seems more effective
given the potential stick and carrot policy involved.
Notes
352. Cassese, 2001.
353. For a thorough analysis of the work of ICTY since its inception,
see Bassiouni, Cherif M., The Law of the International Criminal
Tribunal for the Former Yugoslavia, (Irvington-on-Hudson, NY:
Transnational Publishers, 1996).
354. See Charter of the United Nations, , (last visited 11 September
2006) ; Cassese 2001.
355. See, Tadic Interlocutory Appeal, para. 58; Simon, Jan-Michael,
`State-sponsored mass violence: Criminal Accountability and
Reconciliation', Max Planck Institute for Foreign and International
Criminal Law - Freiburg, Germany, September/October 2002; Cassese,
Antonio, `The International Criminal Court: Some preliminary
reflections", European Journal of International Law, Vol. 10, 1999,
pp. 144-71, at 164.
356. Tadic, Interlocutory Appeal, para. 58.
357. TDN, Kurdish impasse, supra note 4.
358. Kerim Yildiz and Mark Muller, `the EU, Turkey and the Kurds', EU
- Turkey Civic Commission, Brussels 2004, (Second International
Conference on Turkey, the Kurds and the EU - The European Parliament,
Brussels, 22-23 November 2004 - Conference Papers).
359. Office of Prime Minister: Directorate of General of Press and
Information, `Erdogan: `Those Talking about Dividing Iraq are Playing
With Fire', 15 January 2004 (Erdogan warned that `Iraqi Kurdish
groups are playing with fire. Turkey won't let them divide Iraq').
360. Musgrave, Thomas D., Self Determination and National Minorities
(Oxford: Oxford University Press, 2000), p. 193.
361. Turkish Daily News, `Turkish army entered and pulled out of
Iraq, say reports', TDN Ankara, 29 July 2006.
362. Cihan News Agency, `Saddam-era Agreements with Turkey Not
Valid', Zaman, Ankara, 14 July 2006.
363. Hawley, Caroline, `Iraqi Kurdistan a world away from war', BBC
News, Baghdad, 12 August 2005.
364. United Nations Security Council Resolution 827 on Establishing
an International Tribunal for the Prosecution of Persons Responsible
for Serious Violations of International Humanitarian Law Committed in
the Territory of the Former Yugoslavia, S.C. res. 827, 48 U.N. SCOR,
U.N. Doc. S/RES/827 (1992).
365. Tenth Annual Report of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
former Yugoslavia since 1991, U.N. GAOR, 58th Sess., Agenda Item 55,
U.N. Doc. A/58/297-S/2003/829 (2003), para. 348: (`[ICTY] trials have
sent a powerful message that only through justice can all the peoples
of former Yugoslavia achieve reconciliation and create thriving
societies.' [Emphasis added.])
366. First Annual Report of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
former Yugoslavia Since 1991, U.N. GAOR, 49th Sess., Agenda Item 152,
U.N. Doc. A/49/342-S/1994/1007 (1994) , paras. 11-15; also see
subsequent annual reports, 1995 Report para. 199; 1996 Report,
para.5; 1997 Report, para. 4; 1998 Report. para. 5.
367. Çakmak, 2003, pp. 63-90, at 63.
368. Sixth Annual Report of the International Tribunal for the
Prosecution of Persons Responsible for Serious Violations of
International Humanitarian Law Committed in the Territory of the
former Yugoslavia since 1991, U.N. GAOR, 54th Sess., Agenda Item 53,
U.N. Doc. A/54/187-S/1999/846 (1999), para. 212, [emphasis added].
369. Kambanda, supra 324, para. 40.
370. Ibid.
371. Issues of Democracy, USIA Electronic Journals, `Bringing
Violators to Justice: An American View', An Interview with John
Shattuck, Issues of Democracy, USIA Electronic Journals, Vol. 1, No.
3, May 1996, pp. 5-9, at 8.
372. Ibid.; for a relevant report in this contexts, see Human Rights
Association of Turkey (IHD), `What happens if those who should
maintain Democracy, Freedoms and Human Rights make call for
Repression and Violence?' Press Release, 06 April 2006; Human Rights
Association of Turkey (IHD), `Attacks and Lynching Attempts Occurring
Every Coming Day are Threatening Social Peace and Democracy', Press
Statement, Ankara, 07 September, 2005.
373. Hildreth, Brian T., `Hunting the Hunters: the United Nations
Unleashes Its Latest Weapon in the Fight Against Fugitive War Crimes
Suspects - Rule 61', Tulane Journal of International and Comparative
Law, Vol. 6, No. 1, Spring 1998, pp. 499-524.
374. Ibid; this procedure, which is called `super indictment', is
provided by Rule 61 of the Rules and Procedures of the ICTY has,
since its first use on 20 October 1995, become part of ICTY strategy.
375. Article 25 of the UN Charter.
376. Article 41 of the UN Charter.
377. Kritz, 2002, p. 23.
378. Ibid.
379. AI the Guclukonak Massacre, supra 365.
380. Concannon, Brian. Jr., `Justice for Haiti: The Raboteau Trial',
Institute for Justice and Democracy in Haiti, 2001.
381. Ibid.
382. Ibid.
383. Öktem, Kerem, `Return of the Turkish `State of Exception','
Middle East Report Online, 3 June 2006.
384. Ayata, 2005, pp.5-42, at 08, 10, 40-42.
385. United States Department of State, `Report on Allegations of
Human Rights Abuses
by the Turkish Military and on the Situation in Cyprus', Bureau of
European Affairs, 01 June 1995 (see the Turkish official response to
the allegations made by the villagers and journalists).
386. AI, No security, supra 91, p. 4 citing Cumhuriyet, 28 October
1994; Kirisci and Winrow, 1998, p. 131 citing Hurriyet, 28 October
1994.
387. One of the few items available at the English version of the
official website of the Turkish Parliament (TBMM) is a `documentary'
book on Armenian genocide of the Turks in 1914-18: `Archive Documents
about the Atrocities and Genocide inflicted upon Turks by Armenians'
, compiled by Grand National Assembly of Turkey Board of Culture,
Arts and Publications, - Publication No. 93, Ankara - 2002, , (last
visited 10 September 2006).
388. Shawl, Jeannie, `Turkey threatens sanctions if France adopts
Armenian genocide law', Jurist - Legal News and Research, 15 May
2006.
389. Human Rights Watch, `Turkey: Pamuk Trial Tests Commitment to
Free Speech', 08 December 2005.
390. Kritz, 2002, p. 24.
391. Linton, Suzannah, `Prosecuting Atrocities at the District Court
of Dili', Melbourne Journal of International Law, Vol. 2, 2001, pp.
414-58, at 458.
392. Cassese, 2001. Probably the most famous revenge case was the
assassination of Talaat Pasha in Berlin in 1922 by a young Armenian
student, on whose trial Raphael Lemkin, the lawyer who later coined
the word `genocide', commented: `It is a crime for Tehlirian to kill
a man, but it is not a crime for his oppressor to kill more than a
million men'; quoted in Cooper, Belinda and Taner Akcam, `Turks,
Armenians, and the `G-Word'', World Policy Journal, Fall 2005, pp.
81-93, at 84.
393. First Annual Report ICTY, supra 432, paras. 11-15.
394. Huyse, Luc, `The Process of Reconciliation', in David Bloomfield
and others, (Ed.), Reconciliation after Violent Conflict, (Stockholm:
International Institute for Democracy and Electoral Assistance,
2003), pp. 19-22, at 21.
395. Fatic, Aleksandar, Reconciliation via the War Crimes Tribunal?
(Aldershot: Ashgate, January 2000), p. 2.
396. Supra, note 138 and the accompanying text.
397. Fatic, 2000, p. 2.
398. AI An end to torture and impunity is overdue, supra note 85; US
DOS 1999, supra note 64: (`a climate of impunity').
399. Kritz, 2002, pp. 31, 35.
400. Kritz, 2002, p. 23.
401. Turkish Daily News, `Turkey unveils tragic toll of mounting PKK
attacks', TDN Ankara, 11 September 2006; TDN, Kurdish impasse, supra
note 4.
402. Financial Times, Editorial, `Turkey's penal code', 22 September
2006 (stating that `the government's refusal to repeal Article 301 is
not only a failure of leadership but a capitulation to rightwing
nationalists that is expanding their constituency'); Turkish Daily
News, `Reform bill put on hold', TDN Parliament Bureau, 22 September
2006.
403. CNN, `Landslide win for Islamic party in Turkey', 4 November
2002. (AKP is subscribed to Kemalism).
404. Mayerfeld, Jamie, `The Mutual Dependence of External and
Internal Justice: The Democratic Achievement of the International
Criminal Court,' Finnish Yearbook of International Law, Vol. 12, pp.
71-107, at 79.
405. Ibid, pp. 71, 79-80, 92, 107 (outlining the democracy promoting
role of international criminal tribunals and their educative values).
406. Akhavan, Payam, `Beyond Impunity: Can International Criminal
Justice Prevent Future Atrocities?' American Journal of International
Law, Vol. 95, No. 1, January 2001, pp. 7-31, at 7.
407. Ahmed, Nafeez, `Routing out the Opposition: The Comprehensive
Repression of Human Rights in Turkish Society', Islamic Human Rights
Commission, London, 2000, , (last visited 10 September 2006).
408. Schabas, William A., `International Tribunals for Yugoslavia and
Rwanda: Doing More Good than Harm' Ethnic Conflict Research Digest,
Vol. 3, No. 2, September 2000.
409. Both ICTY are ICTR are funded out of the UN's annual budget.
Ibid.
410. Kritz, Neil J., `War Crimes on Trial' ', Issues of Democracy,
USIA Electronic Journals, Vol. 1, No. 3, May 1996, pp. 20-8, at 22.
411. Ibid., p. 24.
412. For a discussion on enforcement of international law, see
Penrose, Mary Margaret, `Lest We Fail: The Importance of Enforcement
in International Criminal Law', American University International Law
Review, Vol. 15, No. 2, 2000, pp. 321-94, at 321.
413. The [United Nations] Commission of Experts, Established Pursuant
to Security Council Resolution 780 (1992), S/1994/674, 27 May 1994;
see supra note162.
414. Ratner, 2001, p. 230.