European judges association, Belgian law firm, NGO take Turkey’s alleged crimes against humanity to ICC

Bünyamin Tekin, The Hague

A law firm and two nongovernmental organizations advocating human rights and the rule of law have sent a communication to the International Criminal Court (ICC) seeking the launch of an investigation into the Turkish government due to crimes allegedly committed by government officials against opponents, the organizations have announced.

Representatives from Belgian-based law firm Van Steenbrugge Advocaten (VSA), the Turkey Tribunal VZW nongovernmental organization and European judges association Magistrats Européens pour la Démocratie et les Libertés (MEDEL) announced at a news conference in The Hague on Wednesday that they had sent a communication to the ICC that includes evidence of crimes against humanity committed in Turkey.

Turkey Tribunal VZW is a Belgian-based NGO that set up a civil society-led tribunal to adjudicate recent human rights violations in Turkey including torture, abductions and the right to a fair trial. The tribunal convened in Geneva on Sept. 21, 2021. After four days of hearing victims the panel of judges announced their verdict, saying that the torture and abductions perpetrated by Turkish state officials since July 2016 could amount to crimes against humanity in an application lodged with an appropriate international body.

Following up on that lead, VSA, acting in the name of 40 victims; MEDEL, an association of 18,000 judges and public prosecutors from 16 European countries; and Turkey Tribunal VZW sent a communication addressed to the Office of the Prosecutor of the ICC, claiming that crimes against humanity have been and are being committed in Turkey.

The communication provides information to support the claim and requests that the ICC prosecutor start investigations under Article 15 of the Rome Statute.

Under that article, any individual, group or organization can send information on alleged or potential ICC crimes to the Office of the Prosecutor (OTP) of the ICC. Before an OTP investigation can open, the ICC prosecutor is responsible for determining whether a situation meets the legal criteria laid out by the Rome Statute. The OTP analyzes all situations brought to its attention based on statutory criteria and the information available.

Turkey is not a party to the Rome Statute of the International Criminal Court, adopted at a diplomatic conference in Rome in 1998. Currently, 137 states are signatories, but only 123 are considered parties to the treaty, which establishes genocide, crimes against humanity, war crimes and the crime of aggression as the four core international crimes.

However, the communication to the OTP cites a 2019 ruling by a chamber of the ICC, which authorized the prosecutor to launch an investigation of the alleged crimes committed against the Rohingya. Despite Myanmar not being a party to the Rome Statute, the fact that displaced Rohingya ended up in Bangladesh, a state party to the statute, was regarded as sufficient for the ICC to consider the case to be within its jurisdiction.

The communication to the OTP includes documents of “crimes against humanity” committed by Turkey in 45 states party to the Rome Statute.

The communication alleges that Turkish officials have committed crimes of “torture,” “enforced disappearances,” “imprisonment in violation of fundamental rules of international law” and “persecution,” which are crimes against humanity as defined by Article 7 of the Rome Statute.

Saying that between 2015 and 2021 the Turkish government launched investigations into 2,217,000 persons on accusations of terrorism and courts convicted 374,000 persons based on those investigations, the communication claims the imprisonments these convictions led to constitute the crime of imprisonment in violation of fundamental rules of international law.

According to MEDEL, VSA and Turkey Tribunal’s communication to the ICC, the mass firing of civil servants and private sector staff after a coup attempt in 2016, the withdrawal of passports and consular services from certain Turkish nationals overseas and the closure of schools outside Turkey with ties to the Gülen movement constitute the crime of “persecution.”

At its peak, the Gülen movement, a worldwide civic initiative inspired by the ideas of Turkish cleric Fethullah Gülen, operated schools in 160 countries, from Afghanistan to the United States. Since a coup attempt in 2016, Turkey has pressured allies to shut down Gülen-run institutions.

Turkish President Recep Tayyip Erdoğan’s Justice and Development Party (AKP) government launched a war against the Gülen movement following corruption investigations in late 2013 that implicated then-prime minister Erdoğan’s close circle.

The war against the movement culminated after an attempted coup in Turkey on July 15, 2016, because Erdoğan and his AKP government accused the movement of masterminding the abortive putsch and initiated a widespread purge aimed at cleansing sympathizers of the movement from within state institutions, dehumanizing its popular figures and putting them in custody.

According to the communication, signed on behalf of Turkey Tribunal by Prof. Em. Dr. Marc Baron Bossuyt, the former president of the Belgian Constitutional Court and former president of the UN Human Rights Commission; on behalf of VSA by Prof. Em. Dr. Johan Vande Lanotte, former deputy prime minister of Belgium and reputed professor in international human rights law; and on behalf of MEDEL by Judge Mariarosaria Guglielmi, the crimes mentioned were committed as part of a widespread or systematic attack against “a civilian population, pursuant to or in furtherance of a state policy to commit such an attack,” meeting the threshold for the ICC to launch proceedings against high-ranking officials of Erdoğan’s government.

At the press conference in The Hague on Wednesday, Professor Vande Lanotte compared the crimes committed by the Turkish government against its opponents to crimes committed by Russia against the people in Ukraine, saying that international law was violated in both cases.

“The crimes committed by Russia in Ukraine constitute a war against the people of Ukraine and against the most elementary principles of international law. The crimes committed by Turkish officials against opponents of the regime are another type of war, condemning the opponents to torture, to imprisonment and to social death. But this war is also deliberately and proudly attacking the most fundamental principles of international law,” said Vande Lanotte.

The communication to the ICC includes 463 individual statements of torture relating to 800 persons and 59 cases of extraterritorial and domestic enforced disappearance relating to 109 persons.

However, as only the crimes committed or started in a state that ratified the Rome Statute can be judged by the ICC, the communication mentions certain cases that can lead to individual criminal procedures before the ICC.

To a question asking whether it is possible for Turkish President Recep Tayyip Erdoğan, as the head of a NATO member country, to be charged by the ICC due to the crimes against opponents committed in Turkey under his rule, Vande Lanotte said just like the ICC started an investigation of Russian war crimes in Ukraine, the same is valid for the crimes against humanity committed by the government in Turkey.

“Can the Russian president be prosecuted? Before the ICC? The answer to that question is the same legally as the question Can Mr. Erdoğan be prosecuted before the ICC. They’re both in the same situation. We will see. The fact is that the ICC started [an investigation into Russian war crimes]. So …  this cannot be an argument for not starting. But both President Erdoğan and President Putin are in the same legal position,” he said, adding that being the president of a NATO member country does not make any difference.

The communication enumerates the abduction of victims from Kenya, Cambodia, Gabon, Albania, Bulgaria, Moldova, Mongolia and Switzerland who were brought to Turkey in 17 cases of enforced disappearance; the closure of 73 schools in 13 states party to the Rome Statute (Mali, Niger, Tunisia, Chad, Afghanistan, Venezuela, D.R. Congo, Gabon, Senegal, Jordan, Zambia, Liberia and Congo-Brazzaville); the discriminatory withdrawal of passports and the discriminatory non-issuance of ID cards in 29 states (Afghanistan, Austria, Bangladesh, Belgium, Bosnia Herzegovina, Cambodia, Canada, Denmark, France, Georgia, Germany, Guinea, Liberia, Lithuania, Luxembourg, Madagascar, Mali, Mongolia, Nigeria, North Macedonia, Peru, Poland, Romania, Switzerland, Tanzania, the Netherlands, Tunisia, Uganda and the United Kingdom), as crimes that can be prosecuted by the ICC.

According to the communication, which consists of 4,000 pages of legal and factual analysis and includes testimony from hundreds of individuals, those crimes affected some 1,300 persons.

“The submission of this communication should not be perceived as a hostile act against Türkiye. It is neither an action in support of those that were involved in that failed coup d’état. It is an action in support of all those – and there are many – that suffer under those gross violations of human rights,” Em. Prof. Bossuyt said in a video message shown during the press conference.

“Crimes against Humanity are committed. Sadly enough, such Crimes committed by strong, Western countries, never were prosecuted. Criminal responsibility for Crimes against Humanity, however cannot be selective. The introduction of the communication is a strong signal of the wish of so many people that impunity cannot be tolerated,” former NBA star and human rights activist Enes Kanter Freedom said, also in a video shown during the press conference.

“For decades, human rights violations in Turkey have gone unresolved at national courts and the judgements of the European Court of Human Rights never were respected by political powers in Ankara. I hope that this new initiative will open a new horizon of freedom and democracy for all citizens of Turkey,” Turkish journalist Doğan Özgüden said about the communication in a video message.

“The Turkish people have been hit by a huge tragedy,” MEDEL said in the press release, alluding to two major earthquakes that struck the country on Feb. 6 and killed more than 50,000 people.

“MEDEL shares the suffering of the victims and expresses its solidarity for all those affected by a disaster which brought to the destruction of entire communities. For those of us who witnessed in their own countries the impact of events of this kind, the empathy with the population of the regions of Turkey struck by the earthquake is particularly strong,” the European judges association added.

“Nevertheless, every violation of human rights and freedoms must have a response in terms of justice. This is a principle that admits no exceptions: freedoms and human rights are inviolable and universal values. Their protection cannot be suspended or denied. Anyone who deliberately and systematically infringes them must be held accountable,” MEDEL stated.

Turkey has been experiencing a deepening human rights crisis in recent years.

Scores of Gülen movement followers were forced to flee Turkey to avoid a government crackdown following the coup attempt. Some of these people had to take illegal and risky journeys on dinghies to Greece because their passports had been revoked by the government.

According to a statement from Interior Minister Süleyman Soylu on July 5, 2022, a total of 332,884 have been detained, while around 101,000 others have been jailed due to alleged links to the Gülen movement since the failed coup. The minister said there were 19,252 people in Turkey’s prisons at the time who were jailed on alleged links to the movement while 24,000 others were at large.

Widespread or systematic imprisonment of individuals with alleged links to the Gülen movement may constitute crimes against humanity, the UN Human Rights Council’s Working Group on Arbitrary Detention said in an earlier opinion on the extradition of Arif Komiş, 44, Ülkü Komiş, 38, and their four children from Malaysia to Turkey in August 2019.