Communication to the ICC Concerning the Situation in Türkiye: Complementarity Must be a Positive Addition, Not an Excuse

[Prof. Em. Dr. J. Vande Lanotte had a long career as professor in human rights and constitution law. He was Deputy Prime Minister of Belgium for 13 years and is now a lawyer. He introduced the communication on the situation concerning Turkey to the ICC.]

In her posts “The Turkey Tribunal’s Long Shot: Stretching Territorial Jurisdiction and Disregarding Positive Complementarity Options” (Part I and Part II), Dr. Ligeia Quackelbeen makes some interesting and tempting remarks on the recently introduced communication concerning the situation in Türkiye. As one of the lawyers who introduced the communication, I am welcoming the critical remarks as a part of the discussion on how to end the impunity still present for so many Crimes against Humanity. But I do not follow all the reasoning of Dr. Quackelbeen. In this contribution, without becoming technical, I will react to some ideas of Dr. Quackelbeen.

Stretching the Territorial Jurisdiction

I am a bit surprised about the discussion about the territorial jurisdiction. I suppose the press release that was published caused quite some misunderstanding. Indeed, in the press release quite some attention was paid to the Bangladesh/Myanmar case, wherein it was stated that transboundary crimes could fall under the jurisdiction of the ICC, if one or more elements of the crime were committed on the territory of a state party. Doing so, the press release perhaps gave the impression that most of the crimes brought under the jurisdiction of the ICC were partly committed on the Turkish territory. In reality that is not the case. From the approximately 1200 victims, only for 10 of them the crime was started in a party state and continued in Türkiye. For all other victims, the crimes were committed in a party state, although for some of them, they continued in Türkiye. In one case torture committed in Türkiye was considered to be a part of the already committed Enforced Disappearance in a party state. I don’t think we stretched the concept of territorial jurisdiction. Türkiye simply exported crimes in an enormous number of countries (of which 45 are state parties) with the complicity of perpetrators in and outside Türkiye. 

Reference to Civil Society

Several times in the article, the communication is referred to as an initiative of the Turkey Tribunal. Dr. Quackelbeen states that civil society should stop lobbying the ICC, etc. I want to make clear that the Turkey Tribunal was the trigger for several victims to stand up and contact our law firm to prepare a communication to the ICC. A very large number of victims sent us their individual testimony. Most of them were and are afraid to communicate about their suffering, but decided not to stay silent anymore.  These testimonies are the basis of the communication. The victims finnced the whole process that took more than a year.  It was at the demand and as representatives  of these victims that we introduced the communication. Finally, Turkey Tribunal and MEDEL joined, for which we were thankful. But the decision was taken by a group of victims, who simply wanted justice and the ending of impunity. It is a bit hurtful for the victims that their communication is considered to be the result of a civil society effort.  

Difficulty of Proof

Dr. Quackelbeen rightly points to the importance of the “Interest of Justice” discussion. Will it be possible to find the needed evidence? Will it be possible to reach the perpetrators? I agree that these are questions that must be answered and are an important element in the admissibility discussion. I assume this was assessed also in the recent Ukraine case. If the OTP is convinced it will not find the evidence and/or it will not be possible to reach out to the perpetrators, it is reasonable not to start an investigation, nevermind frustrating this can be.  In the communication however, most crimes submitted to the OTP were committed in party states. Persons with responsibilities in these states can be considered as persons that could “frustrate” the commitment of the crime and therefore are criminally responsible. Moreover, seldom perpetrators so clearly and proudly expressed their responsibility in the commitment of crimes as in the case of the submitted communication. And Türkiye is not an isolated island either. No investigation is easy. But an investigation in the situation of Türkiye would not be the most difficult for sure.

Complementarity: A Step Forward Indeed Must be Taken

I fully support Dr. Quackelbeen’s idea that the complementarity requirement must be assessed at the level of the party states, where the crimes were committed. The fact that in Türkiye no investigations were launched is as such not relevant. However I do not agree that there is a need to “address these State parties’ unwillingness and inability to tackle this conduct”, as put forward by Dr. Quackelbeen. The Rome Statute only requires to prove the unwillingness and inability where an investigation was started. If no investigation was started, the complementarity requirement is fulfilled, as confirmed by the decision of the Appeals Chamber in Katanga. Reasoning otherwise, leads -as Dr. Quackelbeen indeed indicates, but not approves- to a requirement to exhaust domestic remedies, which is not foreseen in the Rome Statute.  Specific attention must be paid to the fact that an important number of victims were (and are) legally and in reality not able to activate a judiciary investigation themselves concerning their case. However, many of the victims we represent started -in vain- procedures also in party states.

However, I fully support the plea of Dr. Quackelbeen, to “reshape positive complementarity”. As the former Prosecutor Luis Moreno-Ocampo expressed it “the number of cases that reach the Court should not be a measure of its efficiency”. The victims we represent do not want by all means that the perpetrators are brought before the ICC. That isn’t the purpose of the Rome Statute either. The purpose is to end impunity and obtain justice. If that can be reached at the level of a state party, no victim will complain. But this cannot be an excuse. Dr. Quackelbeen refers for instance to a decision of the German Federal Court of Justice of 28 January 2021. This judgment is referred to as an indication that “breaking through immunities might be much easier than initially thought”. Reading the judgment does not lead to such a conclusion, however. On the contrary, the Court confirms the immunity theory but states that it is not applicable in the case of war crimes committed by a lieutenant of the Afghan Army, considered to be “a lower-ranking official, particularly a soldier”. Knowing that the essential ambition of the Rome Statute, confirmed in the jurisprudence of the Court, is to evaluate the criminal responsibility of the persons “capable to frustrate the execution of the crime”, the judgment of the Federal Court of Justice brings little solace.  Dr. Quackelbeen suggests closer cooperation with Eurojust, which is a valuable suggestion. But she considers it to be an alternative, taking in account the “underachievement of the OTP in terms of its role as complementary playmaker”.  In my opinion it cannot be an alternative but a tool for the OTP to really act as a complementary playmaker. How positive Dr. Quackelbeen may be about Eurojust, without the “threat” of the OTP, it will never become effective. Once again, I fully support the idea of positive complementarity. “Our” victims don’t care about which jurisdiction will judge the crimes. But justice must be done. If the suggested possibilities have to come in the place of the OTP, it is clear that the purpose of the Rome Statute will not be reached, and victims will never obtain justice. The Prosecutor rightly does not want to take more than he can chew. Playing an active role as a complementary playmaker, pushing the national jurisdictions hard to effectively investigate and prosecute crimes against humanity, will make his efforts much more effective. More justice can be brought by less average effort per case. The OTP “will chew more”. And finally, that should be the ambition.  It is anyhow the ambition Dr. Quackelbeen and myself share.