Following the attack on Zaxo in the Federated Kurdistan Region, the Iraqi state announced that Turkey carried out the attack with 155 mm cannons. Iraq denounced Turkey to the United Nations (UN) Security Council and requested an emergency session. While the Council is expected to convene today, we spoke to criminal lawyer Günal Kurşun about the international law to be applied against war crimes, the role of the UN and how to try Turkey in the International Criminal Court (ICC).

 

It was stated that Turkey committed war crimes in the attack on civilians in the Zaxo district of the Iraqi Kurdistan Regional Government. What does war crime mean and in which legal texts is it defined?

 

In the setting of World War II, there are four groups of conventions known as the Geneva Conventions. War crime was basically defined by the Geneva Conventions. Common Article 3 of the Geneva Conventions imposes an obligation on warring parties – not necessarily states – to prevent civilians from being harmed by this war, regardless of who they are. Therefore, the Geneva Conventions appeared as the first decisive document in the history of modern international criminal law. However, this is not the only document. After the great genocide that took place in the middle of Europe in 1993 and the disintegration of the former Yugoslavia, a special tribunal called the UN International Criminal Tribunal (ICC) was established. War crimes were also defined in the founding document of this court. With a similar description, we encountered a war crimes tribunal for Rwanda, this time in the middle of Africa, after the Rwandan genocide in 1994. Finally, war crimes reached their current definition with the definition of war crimes in the Rome Statute in 1998. We see that the definition of war crimes has not changed from the Geneva Conventions to the Rome Statute.

 

As both a criminal lawyer and a human rights defender, how did you evaluate this attack as a war crime?

 

Regardless of who the warring parties are, both in the Geneva Conventions and the International Criminal Court, it is the most basic principle that non-combatants and civilians should not be harmed. In this case, too, we see that this fundamental principle has been violated. As a human rights defender, I was very upset. The Iraqi state protested the attack and says the Turkish Armed Forces did it. But the Turkish Ministry of Foreign Affairs also made a statement denying it. Then the PKK made a statement that says Turkey did. I am not in a position to know who did it, but as a Turkish citizen, I was very upset. We have encountered a similar situation before in Roboski in Turkey. Nothing happened to anyone after Roboski massacre. The Kurdish villagers were killed and that was all. We faced the worst possible outcome. No administrative investigation was not initiated. It's a shame.

 

What should be done so that it does not end up like Roboski, and for the facts are revealed in this attack?

 

If Turkey or whoever is the perpetrator of the attack in Zaxo, an effective investigation should be carried out, those responsible should be revealed and shared with the public. After all, we are sure that everyone who died was a civilian. It is the duty of the security guards to reveal the perpetrator of the attack. But we know that Turkey has more than 20 military bases in Iraqi Kurdistan. It's public information, not a military secret. After all, we are talking about a geography where the Republic of Turkey intervening militarily. Therefore, Turkey's responsibility in terms of international law can be mentioned here. But investigating this and uncovering the truth requires the cooperation of the powers that dominate the region. An investigation must be initiated as soon as possible and the truth must be revealed.

 

On the other hand, we learned from the statement of the Iraqi state that all of the dead are people of Arab origin. When the victims are Arabs, the Iraqi state immediately denounced Turkey to the UN and took action. These are their rights, but I wish these reactions could be shown regardless of the ethnic origin of the victim. Many Kurds also live in Zaxo. I am not sure if the Iraqi state would have acted the same  if the deceased had been Kurds. The human rights approach is to condemn what happened regardless of the identity of the perpetrator and the victim.

 

So, how should the UN's position can be evaluated? The UN did not intervene in the massacres against civilians in a lot of incidents. If the UN intervened in Roboski, would Zaxo have happened?

 

No matter how much it says it protects and defends international law, the UN is also a political organization. Therefore, their decisions are also political. The UN did not intervene in Roboski because it hesitated before Turkey. Its justification was that it expected the sovereign country would make the necessary investigation and prosecution". But we saw that this was not the case in the Roboski massacre. We did not encounter an effective investigation or a prosecution process. In such cases, the UN looks at the internal structure of the relevant country; If there is no environment where such an investigation can be made, that is, the state order has collapsed, it comes into play when there is no opportunity to talk about a properly functioning legal order. 

 

Is it possible to talk about a well-functioning legal system in Turkey for the time being?

 

As a criminal lawyer, I say this with shame; We are not sure about Turkey's law, can anything come out of such a biased and dependent judicial system? I hope the perpetrator here is not the Turkish Army. If so, the Republic of Turkey has to fulfill the requirements of the law.

 

Turkey always takes shelter in the concept of “terrorism” in these attacks. Can “terrorism” be a reason of committing war crimes?

 

Without a doubt, no. Terrorism cannot be a justification for anything especially not in an attack where civilians and children are killed. Even if it was done to prevent terrorism, civilians were harmed. Therefore, the principle of the Geneva Conventions has been violated.

 

In your book of the International Criminal Court in 101 Questions, you state that Turkey did not sign or ratify the Rome Statute establishing the ICC. In this case, what effect can the ICC have on Turkey in such war crimes?

 

If I were to evaluate this incident and under the assumption that the perpetrator of the incident was the Turkish Army; The ICC, which was established with the Rome Statute, has no direct jurisdiction in this case. Because the crime in question must be committed on the territory of a state party to the ICC. The Iraqi state is not a party to the ICC. However, there is a path for the Iraqi state to follow. In the event that the ICC recognises the jurisdiction specific to this one-off event, the jurisdiction of the ICC comes into play. We do not know whether the Iraqi state will do it, I do not think so. Because it is an unprecedented situation, but there is a provision that allows this in the Rome Statute, which established the ICC. I don't think the Iraqi state would do such a thing, because that will pave a way. If it does something like this now, it should do it on every occasion. In fact, Syria also can theoretically do this. Syria is not a party, and similar incidents have been committed in the past and are still being committed. After all, we are talking about the Middle East, a geography where democracy does not work very well.

 

Iraq denounced Turkey to the United Nations Security Council. What would be the legal process to be operated in such a case, at what point does the ICC come into play?

 

Turkey became a member of the UN Security Council years later. There is another provision in the Rome Statute; The UN can directly refer an incident to the ICC. It means an order to the ICC prosecutor to "open the case on this matter" and if such a request comes from the UN Security Council, a lawsuit has to be filed. But one of the members of the Security Council is Turkey. But there is a hegemonic structure of permanent members in the council. 15 states are members of the UN Security Council, of which the USA, Russia, England, France and China are permanent members and have veto rights. There are very rare issues that these 5 countries can come to terms with politically. If such a decision comes out of this structure, the ICC may initiate a trial for Turkey. It is extremely unlikely that such a thing will happen.

 

But the real issue is nobody asks why the Republic of Turkey is the subject of the UN Security Council as a country that commits war crimes. Or nobody is bothered by it. In order not to fall into such a situation, it is necessary to apply the law. But for a long time, law in Turkey has been seen as an extremely unnecessary structure. Especially by those in power. In this government, we see that Turkey has rapidly ceased to be a state of law, but it can be seriously debated whether it was a state of law before. Unfortunately this is not new thing. The relationship with the law in Turkey has always been problematic.

 

How can a democratic and peaceful solution can be found for the Kurdish question after this attack and how can it change Turkey's international status? What is the solution?

 

The solution is law and peace. The comprehensive solution is actually very clear. The only way to prevent these situations is peace. The right to peace must be defended at every point. States benefit from war but no outcome in which children die is desirable. Therefore, peace must be prioritized above all else.

 

If steps are taken for a peaceful solution to the Kurdish problem, many things will quickly improve, including the economy. In a geography dominated by democratisation, human rights, law and peace, there is no room for any of the problems. It dissolves in the system itself. I hope we reach this standard as soon as possible.

 

MA / Zemo Aggoz