21 Mar The Turkey Tribunal’s Long Shot: Stretching Territorial Jurisdiction and Disregarding Positive Complementarity Options (Part II)
[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.]
The Connection Between the Jurisdictional Assessment and Admissibility Test
A second, more tentative, point that I want to raise is that I detect something contradictory about going very far in establishing jurisdictional links to state parties but then mostly reflecting upon complementarity in terms of the investigations that have been conducted by a non-state party. The Communication in large part rests upon the unwillingness of the Turkish authorities to investigate the arrests, tortures and persecution after the coup. And indeed, what happened after the coup is the quintessential form of state criminality that states themselves are complicit in, and thus fail to address. It is the archetypical type of criminality that the ICC was designed to tackle. However, if the Communication circumvents the problem of lacking territorial jurisdiction over Turkey by establishing territorial links in other countries, is there not also a need to address these State Parties’ unwillingness and inability to tackle this conduct? And this is something where the Communication reveals a weakness in my view. The Communication lacks a serious assessment of the admissibility issue in relation to these State Parties. It is underexplored how this weak basis for territorial jurisdiction impacts upon the admissibility of the case.
If we start to consider evaluating the State Parties willingness and ability to investigate these crimes, however, we run into an essential problem and that is whether these state parties can be judged in terms of their unwillingness and inability because the part of the crime that happened on their territories might have remained, given their less seriousness nature, under the radar of prosecutorial authorities. It needs to be recalled that a lot of the territorial links established in the Communication consist of the withdrawal of passports in relation to citizens that lived in state parties. Is this constitutive element – if one accepts that this is a severe deprivation of fundamental rights – sufficient to trigger a state’s responsibility to investigate the international crime of persecution?
The Communication in any event does not detail in relation to most of the 45 mentioned State Parties whether they are aware that they might need to act. The Communication mentions some national investigatory efforts. It details for example a Swiss investigation into two former diplomats attempting to kidnap a victim involved in the Gulen movement (see paras. 651-663). The initiative takers also mentioned having pursued a German investigation. But apart from that, the communication does not explain the level of knowledge of these state parties. It seems a bit far-reaching to argue that they should have been aware and therefore have not fulfilled their duty to investigate. But then it seems necessary, in order to trigger this duty to investigate, that the authorities of state parties are made aware. This reasoning perhaps comes dangerously close to arguing that victims need to exhaust domestic remedies and have to file complaints in order to make the authorities investigate. I do not wish to push the argument that far. It nonetheless remains unclear to me whether other efforts to find accountability domestically were pursued. In this context, drawing a parallel with the Bangladesh/Myanmar situation might be a bit misplaced given it was Bangladesh that referred the Myanmar situation to the court. The same cannot be said for some of the cases brought up in this communication. Here it is unclear whether the state parties involved can reasonably be expected to be aware of constituent elements of international crimes happening on their territories. If we spread out all the different elements of an international crime over multiple territories, can we then still expect each of these national authorities to put the pieces together. And if we cannot expect this from the national authorities, should we then put the onus on the ICC? And if so, is putting the onus on the ICC not in stark contradiction with the complementary nature if the ICC? This discussion makes clear that there are limits to what the ICC can do and why it is important to imagine other paths towards more accountability.
Reshaping Positive Complementarity and Considering Alternative Paths Towards More Accountability
Many experts put the ICC at the centre of the positive complementarity system, as is evidence in a 2003 expert paper. Of course, there is something self-evident about this position as there would not even be a notion of complementarity without the ICC. Even so, it seems that the OTP is sometimes failing in its role as complementarity playmaker. The ICC has received around 15000 communications since its inception. Of those 15000 communications, only 700 were found to not be manifestly ill-founded. It has even been criticized that the OTP does not necessarily formally respond to all Communications (see for example here). Furthermore, this phase is often not very transparent making it difficult to always understand the ins and outs of the OTP filtering procedure (see Stahn). But given that others have so eloquently discussed the problematic aspects of this phase and how it could be improved, I want to turn to another focus and that is the role of civil society in making the system of positive complementarity more effective.
I want to understand how in this highly unsatisfactory system NGOs keep lobbying an institution that does not have the time or resources to properly consider them (see on this development here). From a policy perspective, it is clear that Kharim Khan does not want to take on more than he can chew. With his docket overflowing and the ICC’s funding not substantially increasing, it seems likely that any reason to not pursue yet another case will be used to keep the caseload as it is. I think civil society working in international criminal justice realizes that this is the political reality and consequently that these communications are often a long shot. So why, when these NGOs realize that a case is unlikely to move forward, do they pursue this avenue?
The line of reasoning that is interesting from my perspective to develop further is, how can we effectively make the future of international criminal justice truly more domestic and turn civil society away from the ICC to consider other avenues. If we embrace positive complementarity, the question is how to have other criminal justice actors than the ICC step up, how can we more effectively share the burden and what can civil society do to help raise accountability? I therefore want to suggest mainly two avenues, the first more traditional, the second more novel, which I think the Turkey Tribunal has insufficiently explored.
The first is that the Communication does not detail much about efforts pursued to make that national authorities investigate the mentioned crimes. In relation to one State Party namely Germany, this seems particularly odd, given Germany’s Code of Crimes against International Law (CCAIL) and a well-known functioning war unit. Germany has had multiple successful prosecutions for international crimes over the years, demonstrating its competence in international criminal justice. The German Prosecution moreover would, on the basis of the Legalitätsprinzip, in principle be required to investigate international crimes brought under its attention. There is certainly a discretionary power as well, but since many of the victims in the Communication have a link to Germany through either nationality or residence, it seems that a sufficient nexus would be an argument in favour for German authorities to move forward with an investigation. On top of that, the mentioned German Code does not necessitate the perpetrator to be present in Germany. The only bar for the German authorities that would not exist in a similar way for the ICC is immunities. But even in relation to immunities, recent German case law indicates that breaking through immunities might be much easier than initially thought (see for example here). Since the Communication evidences a connection to Germany in relation to multiple victims, pushing for a German investigation seems an underexplored option that could potentially lead to Turkish victims getting their day in court. It might not catch the biggest fish, and if the endgame is Erdogan himself, I am afraid disappointment will surely follow. And even though a German prosecution also carries certain political implications, it might catch some fish at least and is therefore worth pursuing.
Although I can understand that the hope might be for the OTP to liaise with national authorities, I would propose that positive complementarity 2.0 entails moving away from putting the ICC at the centre of this system. As said, the OTP has been underachieving in terms of its role as complementarity playmaker, and so maybe the time has come to consider not needing to go through the ICC in order to have an effective chance at accountability. I think that there is also a responsibility for civil society to take in this matter. And if a liaison to national authorities is needed maybe my second suggestion can be considered and that is to put Eurojust at the centre of, at least regional European efforts, to create more accountability.
Operating through Eurojust seems to me profoundly underexplored. Some of the State parties with which the communication establishes territorial links are EU members States and have direct access to Eurojust (e.g. Belgium, France, the Netherlands, Germany, Poland, Romania, Bulgaria) and others have a cooperation agreement with Eurojust (e.g. Switzerland). This institution furthermore has, since 2002, the Genocide Network that is building an impressive expertise in terms core international crimes. On top of that, not only Ukraine but also other instances have demonstrated that Joint Investigation Teams and other EU Tools such as the European Arrest Warrants or the European Investigation Order, offer a still largely untapped potential in terms of tackling international crimes. And even more recently with the cooperation agreement with the ICC and Eurojust’s Core International Crimes Evidence Database (CICED), I expect that Eurojust’s future role in the international criminal justice field will only grow. Eurojust has a toolbox of measures at its disposal that the ICC simply does not have and although a role of Eurojust would create less buzz in terms of awareness, it could generate more results. Therefore, I think it is another path that needs to be seriously considered. I also imagine that Eurojust will shape our system of positive complementarity in the years to come.
Conclusion: What is the Endgame?
Overall, I sympathize with the Turkey Tribunal but we see too many communications that are, simply put, a long shot, in terms of their successfulness of leading to a preliminary examination. The communication of the Turkey Tribunal in some ways exposes the existential limits of the ICC. By contemplating intervening in a situation largely focussed in a non-State party, the limits of the law are revealed. However much we want the law to be there, it is simply not and so I think a central way of moving forward is to conceptualize positive complementarity differently. National authorities are becoming increasingly knowledgeable in the prosecution of international crimes and when lobbying efforts to the ICC remain without result, it is time to imagine alternatives. The endgame might not be the same and the most responsible might be out of reach, but as several domestic prosecutions have demonstrated the last couple of years, a lot is still possible. And here I see an essential role for civil society to steer away from the long shots but consider the avenues that generate results, however minor those results might be.