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Accountability for War Crimes in Turkey

The Huffington Post The Huffington Post 23/02/2016 David L. Phillips

Ten Kurds were shot by Turkish troops in Cizre, Turkey, on January 20. Video of the shooting went viral, causing international outrage. UN High Commissioner for Human Rights, Zeid Raad al-Hussein, urged Turkey to a conduct a "thorough, independent, impartial investigation." Zeid emphasized, "If State operatives commit human rights violations, they must be prosecuted." The Cizre incident is part of pattern. Under the guise of fighting terrorism, several hundred Kurdish civilians have been killed since July 2015.
This article draws on international experience in comparable situations, informing options to investigate and prosecute those responsible for the Cizre incident.

The first and primary responsibility rests with the Government of Turkey. The Rome Statute that established the International Criminal Court enshrined the responsibility of the national authorities to bring those responsible to justice. Consistent with its obligation in international law, Turkey should announce the establishment of a national commission of inquiry to investigate alleged war crimes.
To be credible, the national commission of inquiry must be transparent, independent and well resourced. The commissioners and experts would be persons of high moral standing, respected by society. They will require independence, access, and full support of the government to conduct a credible investigation.
It is unlikely, however, that the Turkish authorities will set-up a national commission of inquiry. The commission would have a mandate to investigate the government, which is allegedly responsible.
Turkey's President Recep Tayyip Erdogan has made eradication of the PKK a national policy. Erdogan has promised to "cleanse" the country of PKK elements and drain the swamp of its supporters.
If Turkey is unwilling or unable to hold the perpetrators accountable, the UN should consider investigating and prosecuting those responsible.
The UN Human Rights Council (UNHRC) could consider the Cizre incident at its upcoming meeting in March. UNHCR members could adopt a resolution, calling on Turkey to investigate. The resolution would require Turkey to report on its investigation at the UNHRC's next session in June.
The UNHCR has alternatives if Turkey stonewalls. It can endorse a UN fact-finding mission. The fact-finding mission would not have a mandate to adjudicate or determine civil and criminal liability. It would simply look into what happened.
As a next step, the UNHRC could create a commission of inquiry. The primary objective of a commission of inquiry would be to establish accountability for violations that have taken place, so that those responsible for violations are brought to justice.
Previous UN commissions of inquiry have been tasked with producing a historical record of an incident, and establishing whether violations of human rights law and/or humanitarian law have occurred.
The commission of inquiry could also have broader objectives: investigating whether violations are systematic and widespread; reporting on a State's ability to deal with the violations; and considering the root causes of the situation.
Over the past 20 years, the UN established many commissions. Cases include the former Yugoslavia, Darfur, Timor-Leste, Lebanon and Guinea. More recent international human rights investigations have taken place in Cote d'Ivoire, Libya, Palestinian territories, the Syrian Arab Republic, the Democratic People's Republic of Korea, Sri Lanka and the Central African Republic.
If the commission concludes there is a pattern of abuses and that the State is complicit, it could propose establishing an ad hoc Tribunal to identify and ensure accountability for the criminal actions by States or individuals concerned.
Examples include the International Criminal Tribunal in Yugoslavia, the International Criminal Tribunal in Rwanda, the Special Court in Sierra Leone, the Special Tribunal for Lebanon, the Special Tribunal for Cambodia (or the Extraordinary Chambers in the Courts of Cambodia), and the Ad-Hoc Court for East Timor.

Though consent from the government concerned is preferable, the UN Security Council (UNSC) can still move forward with the establishment of a commission. Over Sudan's objections, for example, the UNSC established the International Commission of Inquiry on Darfur to "investigate reports of violations of international humanitarian law and human rights law in Darfur by all parties," to "determine also whether or not acts of genocide have occurred."
Turkey's diplomats will adamantly resist a role for the UN. They will dispute the facts, claiming the incident occurred in the context of fighting terrorism. They will argue that Turkey is the victim - not the perpetrator.
The international community should doggedly determine responsibility, lest similar killings recur. If the situation is at an impasse, Member States may have the possibility of proposing a Universal Periodic Review or appoint a Special Rapporteur to review the case. A UNSC resolution under Chapter VII of the UN Charter could overcome Turkey's objections.
Turkey is at a crossroads. Impunity lies down one road. Impunity will further entrench extremism and violence. Down the other road is accountability, helping to avert the escalation of deadly violence. International action would serve as a wake-up call, putting Turkey back on the democratic path.
Mr. Phillips is Director of the Program on Peace-building and Rights at Columbia University's Institute for the Study of Human Rights. He served as a senior to the U.S. Department of State during the administrations of Presidents Clinton, Bush, and Obama.

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