“If Turkey is to be a member of the EU, it has to sign the Rome Statute. The EU reports on Turkey have mentioned that issue several times, and I hope the new report, to be released on Nov. 10, will refer to it again. Each member of the EU has ratified the Rome Statute. Among candidate countries, Turkey is the only one that has not ratified it,” he told Today’s Zaman in his Ankara office.
Kurşun, who had served as the judicial affairs officer at the Delegation of the European Union to Turkey, elaborated on the issue as he answered our questions.
You call on Turkey to sign the Rome Statute, the founding international treaty of the ICC, as soon as possible. Why?
Turkey at the moment is outside of the system although its foreign policy goals require it to be inside that system. This is a vital system for international justice. It is also an invisible criterion of the European Union. If Turkey is to be a member of the EU, it has to sign the Rome Statute. The EU reports on Turkey have mentioned that issue several times, and I hope the new report, to be released on Nov. 10, will refer to it again. Each member of the EU has ratified the Rome Statute. Among candidate countries, Turkey is the only one that has not ratified it. Among the five permanent members of the UN Security Council, the United States, Russia and China have not ratified the treaty, although France and Britain have.
What are the reasons for Turkey not signing and ratifying the Rome Statute?
We need to look at the crimes the ICC can handle: genocide, war crimes, crimes against humanity and crimes of aggression. Turkey has problems with some of these categories. One is war crimes because of the conflict in Turkey’s Southeast. Another is crimes of aggression, which were defined in a conference I participated in in Uganda this year. Crimes of aggression also concern Turkey because of the Cyprus issue.
Can you explain how the Cyprus issue is a concern?
In law, there is the issue of continuous crime. Greek Cypriots postulate that Turkey occupied the island in 1974 and that there are Turkish soldiers still on the island. This issue looks like another obstacle in front of Turkey signing the Rome Statute.
The issue of crimes of genocide is also a subject of debate, right?
The ICC was established in 2002 and can only look into crimes committed after 2002. Turkey should not be concerned about the events of 1915 in that regard. The ICC will not have retroactive jurisdiction and will therefore not hear cases for crimes committed prior to July 1, 2002, when the statute entered into force. The current government, unfortunately, follows the classic line adopted by the state bureaucracy instead of continuing with its reformist approach. Since the Justice and Development Party’s (AK Party) rise to power in 2002, various government officials have said that Turkey would be a signatory to the Rome Statute. Obstacles may have been put forward by pro-status quo forces within the state.
‘We are waiting to see the ICC decision on the Mavi Marmara attack’
You are involved in a coalition to push Turkish authorities forward in that regard. Can you please elaborate on that?
In 2006 we established a Coalition for the International Criminal Court. We started with six human rights organizations and now have more than 20 associations in the coalition, including the Helsinki Citizens Assembly (HYD), the Human Rights Association (İHD) and the Association of Human Rights and Solidarity for Oppressed Peoples (MAZLUM-DER), in addition to several bar associations. We carry out several activities throughout Turkey to raise awareness about the ICC.
Can private citizens individually petition the ICC?
No. This is the difference between the ICC and the European Court of Human Rights. The ICC cannot not put states on trial, but it can try high-level officials who might be perpetrators of crimes. Everyone can apply, but a case can be opened only by an ICC prosecutor. Anyone can ask the prosecutor to take action. The prosecutor can initiate investigations proprio motu on the basis of information on crimes within the jurisdiction of the ICC received from individuals or organizations.
Has anyone applied to the ICC from Turkey?
Yes, the İstanbul Bar Association turned to the ICC regarding crimes committed in Iraq by Britain because the United States had not ratified the treaty. But the ICC prosecutor replied to the association, saying he would act upon a response from Britain. This outcome has made us rethink a principle of the ICC, namely, that ICC jurisdiction is based on “complementarity,” which allows national courts the first opportunity to investigate or prosecute. If a case is being considered by a country with jurisdiction over it, then the ICC cannot act unless the country is unwilling or genuinely unable to investigate or prosecute.
Have there been any other applications to the ICC from Turkey?
Have there been any other applications to the ICC from Turkey?
Some applications were considered in the aftermath of the Mavi Marmara attack. The applications, though, cannot be made through Turkey. The vessel was flying under the flag of the Comoros, which is party to the ICC. We are waiting to see the decision of the ICC regarding the Mavi Marmara attack and whether or not there will be a court case against Israel. The ICC decision will be a test of its reliability and credibility because of the nature of the current cases in the court.
OCTOBER CAMPAİGN FOCUSES ON TURKEY’S ABSENCE FROM ICC
Why do you say that? What are the current cases in the court?
To date, three states parties to the Rome Statute – – Uganda, the Democratic Republic of the Congo and the Central African Republic – – have referred situations occurring on their territories to the court. In addition, the UN Security Council has referred the situation in Darfur, Sudan, a non-state party. After a thorough analysis of information available, the prosecutor opened and is conducting investigations in all of those cases. All are related to African states. The ICC has been criticized for only being able to touch small states, not big ones. This is a challenge for the ICC. Three big states, the US, Russia and China – – all permanent members of the UNSC, are not state parties to the Rome Statute. Another challenge for the court will be to deal with bilateral immunity agreements the United States signed with about 100 countries. As the United States has military forces in about 70 countries, the country commits crimes that may fall under ICC jurisdiction, and the United States tries to avoid cases against its citizens.
Is there such an agreement with Turkey, too?
The United States approached Turkey in 2002 in that regard, but Turkey did not agree to make such an agreement. The US has signed such agreements with several Central Asian states. We will probably have a future crisis regarding this issue.
Can you please tell us more about your October campaign?
We have a global coalition of about 2,500 organizations. This is the largest thematic coalition that I know of, including Amnesty International, Human Rights Watch and several other human rights associations from various countries. Our coalition, the Coalition for the International Criminal Court (CICC), has picked Turkey as its “October target” and is trying to convince it to sign the Rome Statute. The CICC urged its supporters to send letters to Turkish authorities, including President Abdullah Gül, Prime Minister Recep Tayyip Erdoğan and Minister of Justice Sadullah Ergin. This means several Turkish leaders have started to receive letters from the CICC urging them to make Turkey a key international player that could significantly contribute to strengthening the new system of international justice created by the Rome Statute.
Turkey missed the first train in that regard as it did not become a signatory until the deadline of Dec. 31, 2000. Is that correct?
At present, 139 countries have signed the Rome Statute and 113 of these have ratified it. The deadline for the countries to sign it was Dec. 31, 2000. The United States became a signatory to the statute at the last minute and Israel and Iran followed it, even though they have not ratified the statute, giving them the right to participate in meetings. Turkey missed that opportunity. This was the result of Turkey’s isolationist policies at the time. We hope that the 114th country will be Turkey. The CICC letters to the Turkish leaders also emphasized that the ICC is referred to in the EU acquis, with which Turkey is supposed to comply.