21 Mar The Turkey Tribunal’s Long Shot: Stretching Territorial Jurisdiction and Disregarding Positive Complementarity Options (Part I)
[Dr. Ligeia Quackelbeen is an Assistant Professor in International and European Criminal Law (Tilburg University) currently researching problems of interpretation arising from inter alia the concurrence of legal regimes and examining these issues in light of the legality principle and fair labelling.]
On 9 February 2023, a communication was submitted to the Office of the Prosecutor (OTP) of the ICC by the Belgian law firm Van Steenbrugge Advocaten (VSA), under the guidance of Prof. Em. Dr. Johan Vande Lanotte, former Deputy Prime Minister of Belgium and reputed professor on International Human Rights law. This communication concerns a range of alleged crimes that occurred in the aftermath of the 2016 Turkish coup d’état. This step follows a series of actions taken from 2018 onwards to address the Erdoğan regime’s involvement in torture, arbitrary imprisonment, forced disappearances and persecution.
In July 2016, members of the Turkish Armed Forces attempted to overthrow the Turkish government headed by president Recep Tayyip Erdoğan. The government quickly linked the coup d’état to the Gülen movement and its cleric leader Fethullah Gülen, who always denied being involved in the coup. The Turkish government subsequently declared the Gülen movement a terrorist organization, i.e. Fethullahist Terror Organization (FETÖ), allowing far-reaching anti-terrorist legislation to be invoked. This fitted in a governmental crackdown on everyone connected to the coup and even more broadly to everyone critical of the government. Invoking emergency powers, the Turkish government further eroded fundamental rights protection and continued to drift into an even more problematic record in terms of rule of law. Having already a history of torture and inhuman detention, the situation deteriorated further after 2016 (see e.g. CPT report).
Civil society has widely reported on the increasingly authoritarian reaction to dissident voices within Turkish society. It is well-documented that as part of this crackdown, the Turkish Government arrested and detained a large number of people associated with the Gülen Movement (see the 2016 HRW report and the 2017 HRW report). There are furthermore several sources detailing the Government’s intention to purge Turkish society from opposition including restricting free speech critical of the government and more broadly targeting journalists, judges, prosecutors, elected officials and people working in academia. This is also evidenced by a range of judgments of the European Court of Human Rights (see for example the Kavala case , and the Turan and others case).
To bring to light and examine how the Turkish republic targeted the Gülen movement and opponents of the regime more broadly, Vande Lanotte and a steering committee established the Turkey Tribunal, a Peoples’ tribunal. As the initiative’s website explains, the mission of this Opinion Tribunal is “to assess and report in an independent and professional manner, based on the standards and principles elaborated by other international courts and tribunals and drawing on the experience of the best practices of national courts, all allegations of human rights violations taking place under the jurisdiction of Turkish authorities”. The initiative operates outside any international or national formal structure. Having been established by civil society, it “serves as an instrument and platform to give recognition, visibility and a voice to people who allegedly suffer(ed) violations of their fundamental rights”.
The Turkey Tribunal follows a long lineage of peoples’ tribunals that have been formed since WWII. The first of its kind was the Russell Tribunal that was established by the English Philosopher Bertrand Russel, and other left-wing intellectuals such as Jean-Paul Sartre, with an aim to raise awareness of the US crimes committed during the Vietnam war. Since then peoples’ tribunals have been established for Palestine, Iraq and many other international conflicts. Most of these tribunals are civil society based, seat judges with a high moral authority, offer a forum for victims to speak about what happened, and have a certain court-like procedure without adhering to formal requirements like those followed in criminal courts. These initiatives are often marked by an absence of representatives of the State and/or accused. Despite inviting representatives of Turkey, they were not present at the Turkey Tribunal. The proceedings also were not adversarial in nature and did not provide a forum to the accused. The Turkey Tribunal was primarily geared towards documenting the international crimes and providing a forum for victims to be heard. Six Judges presided and formulated, after having heard a series of witnesses and examining a range of expert reports, a detailed opinion finding ‘’a systematic and organised use of torture’’ was used ‘’particularly against people perceived to be linked with or supportive of the Gülen movement, the Kurdish people’’; that abductions were ‘’part of state action towards perceived political opponents; and that both extra-territorial and domestic enforced disappearances were part of recurring pattern. The information uncovered by the tribunal was passed on to the ICC and resulted in the submission of a Communication. 41 victim statements were selected, and these victims agreed to give further clarification to the ICC if needed.
People’s Tribunals have been lauded and criticized (see for a thoughtful analysis) and there is much that can be said about these victim-centred, grass-root forms of justice and how the evidence coming out of these initiatives might create due process concerns in a criminal law context. My analysis will nonetheless not be geared towards the people’s tribunal initiative in and of itself. I will rather look critically at three interconnected points in relation to the communication. I first discuss the approach taken to territorial jurisdiction and criticize how, in my view, it comes dangerously close to universal jurisdiction. In this context, I elaborate on the potential problems with the ICC adopting this broad view on jurisdiction. Second, I turn to the contradiction between the broad approach to territorial jurisdiction but the limited approach in terms of inadmissibility. Considering that the ICC has embraced the doctrine of positive complementarity, I wonder whether there have been sufficient efforts to point domestic authorities to international crimes being committed on their territories before turning to the ICC. And this ties nicely into my third point which questions whether there is not a more effective way of burden-sharing, with also a responsibility of civil society to not use the ICC as a one-stop-shop in their search for more accountability. Since the ICC OTP is failing at being the playmaker at the centre of this system of positive complementarity, I want to reflect on how we can steer civil societies away from the ICC and towards maybe smaller and more targeted but potentially more effective ways of seeking accountability.
Overstretching the ICC’s Jurisdiction to Cover a Non-State Party
The ICC OTP proceeds with a preliminary examination when four criteria are met: (1) when there is temporal, territorial and material jurisdiction over the alleged facts; (2) when the case is admissible since the state(s) are unwilling and unable to genuinely investigate and prosecute (the complementarity assessment); (3) when the case is admissible since it is sufficiently grave (the gravity assessment) and (4) when there is no substantial reason to believe that an investigation would not serve the interests of justice. In 2003 the ICC Office of the Prosecutor specified in an Annex to a Policy paper how communications will be evaluated. Without imposing too high standards and requiring civil society having to conduct extensive investigations, this document stipulates the need to have, in light of article 15 ICC Statute, the information and thus legal and factual background to ensure that there is a reasonable basis to believe that a crime within the jurisdiction of the Court has been or is being committed.
In relation to the jurisdiction assessment, there seems to be no reason to doubt that the crimes mentioned in the communication can be argued to fulfil the ICC’s temporal and material jurisdiction. Since Turkey is not a party to the Rome Statute, it was more difficult to establish the territorial jurisdiction. As a result, territorial links with other state parties had to be sought. Relying on the case law coming out of the Bangladesh/Myanmar (see here and here) and the Afghanistan investigation/situation (see here), the communication argued that transboundary crimes had sufficient links to the territory of state parties considering that one or more of the constituent elements occurred on their territories. The Communication details enforced disappearances with links to the following state parties: Kenya, Cambodia, Gabon, Moldova, Bulgaria, Albania, Mongolia and Switzerland. Part of the crime of persecution was argued to be the withdrawal of passports and denial of consular services which occurred in 29 State Parties. In the press release links to 45 State Parties are mentioned.
Despite these links to State Parties, the communication indirectly acknowledges that the pith of the cases are in Turkey. In the analysis of gravity, for example, the communication reiterates that the gravity evaluation is not limited to considering “facts falling under the jurisdiction of the Court” and argued that “those that are out of jurisdiction, are relevant to assess the gravity requirement”(para 19 of the Communication relying on the Appeals Chamber Judgment in the Al Hassan Case). It also explains how, although some abductions were realized on State Party territory, the imprisonments and tortures occurred on Turkish territory. In relation to the crime of persecution, the Communication’s link to the territory of State Parties is a bit stronger – for example when speaking of the school’s being closed or by the withdrawal of passports.
But it cannot be denied that for the most part, the most grave conduct occurred on Turkish territory. The Communication thereby ignores that the Pre-Trial Chamber in the Afghan situation has required there to be “an adequate jurisdictional link” and in relation to Torture specified “it is necessary that the alleged conduct of ‘inflicting severe physical or mental pain’ – not its mere antecedents (ie, the fact of having been captured and abducted) – takes place at least in part in the territory of a State Party” (see here). The argument made in the communication is that torture is part of the crime of enforced disappearances and that as a result the abduction taking place on the territory of a State Party, is sufficiently adequate as a constitutive element to trigger the jurisdiction of the court over these enforced disappearances. This is an interpretation that seems difficult to square with the formulated requirement of an adequate link. It is true that the Pre-Trial Chamber’s decision in the Afghan situation was overturned on appeal, but this appeal did not tackle the question of an adequate jurisdictional link. Furthermore, the CIA black site detention facilities in Romania, Lithuania and Poland would secure this adequate jurisdictional link to state parties in the Afghan situation, whereas I do not see the same convincing link expressed in the present Communication.
I furthermore think there are downsides to stretching the jurisdictional reach of the court to crimes committed on the territory and by nationals of a non-state party, which is essentially what will happen should the ICC investigate the post-coup situation in Turkey. When reading the Communication, I wondered whether the Turkey Tribunal initiative sufficiently realizes that one essential hurdle that this type of investigation needs to overcome is that it needs evidence located in Turkey and that this country is unlikely to cooperate. But apart from the uncertainty of obtaining evidence, I wonder whether the Turkey Tribunal considered the Appeals Chamber decision in the Abd-Al-Rahman Case that limits the court’s exercise of jurisdiction to individuals ‘’who could have reasonably expected to face prosecution under national or international law”. The Darfur situation was the result of a UNSC referral and dealt with a non-state party. In relation to this case concerning a non-state party, the Appeal Chamber found that the Legality Principle opposed the Rome Statute to simply be applied to non-state parties. This development of the case law has generated quite some academic critique (see here and here) and it is likely to get a sequel at the ICC. I would expect this line of reasoning would equally stand in case of a non-state party that was not referred to by the UNSC.
I therefore believe that there are arguments for the ICC to decide that it is not in ‘the interest of justice’ to investigate the Turkish Situation. Allowing a preliminary examination would mean that the OTP would break through the jurisdictional limits inherent to the ICC System and effectively embrace an almost universal jurisdiction. Despite being sensitive to the victim’s cry for accountability, this was not what the ICC System was designed for. By not becoming a State Party, Turkey remains, however unsatisfactory this might seem to the victims, in some way, out of the ICC’s reach. The ICC treaty-based nature means it is in principle limited to adjudicate matters in relation to state parties. This harsh reality necessarily implies that some grave injustices and international crimes cannot be tried before the ICC.