Turkey’s Actions Trigger All States’ Obligations to Prosecute War Crimes by Turkish Forces

Activating the “grave breaches” regime of the Geneva Conventions

After President Donald Trump ordered the withdrawal of U.S. forces from northeast Syria last week, Turkey wasted no time launching an incursion. Its assault on Kurdish forces there has sparked mass displacement and civilian casualties. It also reportedly enabled the escape of hundreds of detained Islamic State fighters, while opening a new front in the Syrian conflict. Increasing reports of war crimes committed at the hands of Turkish troops and their partners in Syria have emerged, including evidence of indiscriminate attacks and the execution of detainees. Considering Kurdish forces’ newly-formed alliance with the Syrian government—poignantly described by the Syrian Democratic Forces (SDF) commander-in-chief as the only alternative to genocide—Turkish operations in Syria may have also exposed senior Turkish officials to international criminal liability. Those senior Turkish officials are not simply vulnerable to criminal  prosecution by any state that’s a party to the Geneva Conventions (which includes every state in the world). The treaty system requires its member states to apprehend and criminally prosecute war criminals who are responsible for “grave breaches” of the Geneva Conventions if such individuals travel into the member state’s territory.

Evidence of War Crimes by Turkish Forces and Partners

Just days into the incursion, there are increasing reports of war crimes being committed at the hands of Turkish forces, including in videos posted on social media. One video reportedly shows the execution of Kurdish captives, including one lying on the ground with his hands bound, by Turkish-backed Arab forces. Another purportedly shows the body of Hevrin Khalaf, a Kurdish politician, executed along with her driver and other civilians. Beyond these still-isolated reports of war crimes thus far, things may get worse as the fighting in northern Syria escalates. Indeed, given Turkey’s history of conflict with Kurdish groups on its own territory, some fear ethnic cleansing and even genocide.

Responding to existing reports, U.S. Secretary of Defense Mark Esper remarked on Sunday regarding the conduct of the Turkish-backed forces that, “It appears to be, if true, that they would be war crimes.” His comment reflects the fact that the deliberate killing of civilians and of captive fighters both constitute war crimes, as well as “grave breaches” of the 1949 Geneva Conventions in international armed conflicts. Grave breaches include wilful killing, intentionally directing attacks against individual civilians not taking direct part in hostilities, and killing or wounding a combatant who has laid down their arms or has surrendered. Such acts are also made criminal by the Statute of the International Criminal Court.

Turkey’s Incursion Triggers an International Armed Conflict

Critically, by seemingly crossing the threshold of what international humanitarian law (IHL or the law of armed conflict) terms an “international armed conflict” – that is, a conflict among nation states – Turkey’s incursion triggers the Geneva Conventions’ full obligations and enforcement mechanisms, including the grave breaches war crimes regime.

Conflict classification in Syria is a dizzying exercise. Amidst the complex web of overlapping conflicts in Syria, Turkey has already been considered to be a party to non-international armed conflicts against Kurdish and Islamic State forces. It may also be involved in an international armed conflict against Syria by virtue of its use of force on Syrian territory without the consent of the Syrian government and the occupation of part of northern Syria since 2016.

Even without engaging in direct hostilities with Syrian forces, Turkey’s use of force against non-state actors on Syrian territory could trigger an international armed conflict according to many authoritative commentators. According to the International Committee of the Red Cross’s 2016 Commentary to Article 2 (which is common to all four Geneva Conventions):

an unconsented-to invasion or deployment of a State’s armed forces on the territory of another State – even if it does not meet with armed resistance – could constitute a unilateral and hostile use of armed force by one State against another, meeting the conditions for an international armed conflict under Article 2(1).  Similarly, the use of armed force not directed against the enemy’s armed forces but only against the enemy’s territory, its civilian population and/or civilian objects, including (but not limited to) infrastructure, constitutes an international armed conflict for the purposes of Article 2(1).

Some states, including the U.S., dispute this proposition. Syria itself seems to have disputed this proposition as well. As Ken Watkin wrote on these pages, when Syria protested Turkey’s 2016 incursion for lack of coordination with the Syrian government and the Syrian army in counter-terrorism operations, it did not suggest that it had been drawn into “an international armed conflict with Turkey as a result of this non-consensual intervention.” Nonetheless, it is more difficult to deny that an international armed conflict exists when Turkey has launched extensive ground operations with the explicit purpose of occupying territory, as they did in 2016, and as they appear to be doing now. As Watkin goes on to acknowledge,

If the goal is to find there is an international armed conflict because the intervening State may overstay its welcome, thereby setting up a situation of occupation, that possibility is already provided for under international law. This may be a very real possibility should the August 2016 Turkish intervention be extended to long term control over the area of operations, such as the possible creation of a buffer zone within Syria.

Given Turkey’s express aim of establishing so-called “safe zones” or “buffer zones” in northern Syria, a state of occupation appears likely.

Until now, however, Turkish forces have not engaged in direct combat with Syrian forces. That changed this week when Kurdish (SDF/YPG) forces, abandoned by the United States, formed a new alliance with the Syrian government to resist the Turkish assault. With reports that “Syrian government troops were expected to enter the city of Kobani overnight,” the Syrian government forces are likely to become embattled directly with Turkish forces. Indeed, Turkey’s primary objective in so boldly entering the fray seems precisely to engage the SDF and YPG militia, which are seen as an extension of Kurdish opposition forces in Turkey (the PKK), but are also now an allied force of the Syrian government. As such, we now have a situation in which one state party to the Geneva Conventions, Turkey, is embattled directly with allied forces of another state party, Syria—a variant of a classic international armed conflict in which non-state groups allied with state forces are fighting another state and its allied non-state forces.

Activating the Global System of Criminal Enforcement for War Crimes Prosecutions

Given that there is now, unambiguously, an international armed conflict in northern Syria, the Geneva Conventions’ war crimes provisions are directly implicated. According to these provisions, all states parties to the Geneva Conventions are empowered to prosecute so-called grave breaches, regardless of the place of commission or the nationality of the perpetrators or victims. Indeed, the Geneva Conventions “grave breaches” regime imposes an obligation on all member states to do so. For example, Article 129 of the Third Geneva Convention, dedicated to protecting prisoners of war, states:

Each High Contracting Party shall be under the obligation to search for persons alleged to have committed, or to have ordered to be committed, such grave breaches, and shall bring such persons, regardless of their nationality, before its own courts.

(See also Article 146 of GC IV, devoted to civilians). Given that all U.N. members have now ratified the four Geneva Conventions, this means that all states of the world can prosecute war crimes committed in northern Syria by all sides—and that they must deploy such criminal procedures against suspected war criminals who cross into their territory.

The Liability of Turkish Officials for War Crimes Committed by their Subordinates

In the context of an international armed conflict, Turkish foot soldiers and their partners on the ground in northern Syria are not the only ones who may be held liable for war crimes. Rather, under the international law doctrine of command responsibility, Turkish military commanders and senior civilian officials can be held individually criminally liable for war crimes committed by their subordinates, provided that they had control over such forces, knew or should have known of the crimes, and failed to take all necessary and reasonable measures to prevent or repress them (Rome Statute, Art. 28).

Even if senior Turkish military or civilian officials are unlikely to face legal consequences in Turkey for their failure to prevent or punish war crimes in Syria, they could face potential criminal liability abroad.

While senior officials have seldom been arrested or prosecuted abroad for alleged “grave breaches,” a number of them have curtailed foreign travel in the past for fear of entering a jurisdiction inclined to pursue such a case. For example, a number of former Bush administration officials—including President George W. Bush, Vice President Dick Cheney, Secretary of Defense Donald Rumsfeld, Attorney General Alberto Gonzales, and Deputy Assistant Attorney General John Yoo—have reportedly curtailed their travel amid the threat of war crimes charges abroad stemming from the United States’ mistreatment of military prisoners. In 2005, for example, Rumsfeld threatened to pull out of a high-profile defense conference in Germany unless he received assurances that he would not be arrested, and Bush cancelled a planned 2006 trip to Switzerland amid the threat of arrest. Beyond the United States, in 2009, former Israeli foreign minister Tzipi Livni cancelled travel to the U.K. after a court there issued a warrant for her arrest over alleged war crimes in Gaza.

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Beyond the moral and legal imperatives to abide by the Geneva Conventions in the conduct of hostilities, given this threat of international prosecution anywhere in the world, Turkish civilian and military officials, as well as the rank-and-file, would do well to ensure that their operations are strictly in compliance with IHL. They are off to a bad start.

 

Turkish soldiers are transported in armored personnel carriers through the town of Tukhar, north of Syria’s northern city of Manbij, on October 14, 2019 (Aref Tammawi/AFP via Getty Images)

 

About the Author(s)

Beth Van Schaack

Leah Kaplan Visiting Professor of Human Rights, Stanford Law School; Former Deputy to the U.S. Ambassador-at-Large for War Crimes Issues in the U.S. State Department. All views are her own. Member of the editorial board of Just Security. Follow her on Twitter (@BethVanSchaack).

Julia Brooks

Julia Brooks is a Furman Public Policy Scholar and J.D. candidate at NYU School of Law, where she is also a Student Scholar at the Reiss Center on Law and Security. She previously served as a Senior Legal Research Associate at the Harvard Humanitarian Initiative, and spent several years working in Germany, Bosnia, and The Hague on international law and justice. Follow her on Twitter (@Julia1Brooks).