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No Place to Hide: “Universal Jurisdiction” Can Hold Perpetrators Accountable

No Place to Hide: “Universal Jurisdiction” Can Hold Perpetrators Accountable
18.05.2022
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By: David L. Phillips

“Operation Olive Branch” was a cross-border operation launched by the Turkish armed forces and their jihadi mercenaries in January 2018. The Turkish-backed Free Syrian Army (FSA) committed obscene war crimes and crimes against humanity, targeting Kurds and Christian communities. It beheaded Kurds, raped and mutilated the bodies of Kurdish women, cutting off their breasts and posing for selfies with their body parts. Turkey’s support for ISIS is well documented. Headed by Hakan Fidan, its National Intelligence Agency (MIT) facilitated the flow of about 40,000 foreign fighters from approximately 80 countries to the front lines in Syria. MIT provided them with weapons, money, and communications equipment. During a speech at Harvard University in October 2014, Biden admitted, “Our biggest problem is our allies”.  Turkey was the lifeline for ISIS beginning in 2014. Turkey professed its loyalty to the Global Coalition Fighting ISIS, but played a double game. To US officials, counterterrorism means fighting ISIS. Turkish officials view counterterrorism as killing Kurds and destroying the PKK. Turkish officials who orchestrated activities in Syria believed they were acting with impunity. As long as they stayed in Turkey or Turkish-controlled areas in Northern Syria or Iraqi Kurdistan, there was no prospect of arresting and holding them accountable. That was before the principle of “universal jurisdiction” emerged as an evolving concept in international law. Germany and a handful of other European states have pioneered universal jurisdiction not for crimes committed on their territory, or against their nationals. When it comes to atrocities, the notion of jurisdiction—that a government or authority can prosecute only crimes committed within its borders—does not necessarily apply. Prosecutors can bring charges against anyone who allegedly committed crimes against humanity, genocide, or war crimes anywhere in the world, against anyone. For sure, alleged perpetrators cannot be tried willy-nilly. The prosecution must be deliberate and based on extensive documentation. Since Germany and other European courts require evidence before invoking universal jurisdiction, victims’ groups should document crimes in accordance with international standards for use initiating trials. Kurds and other victims of Turkish atrocities – Alevis, Yazidis, Armenian Christians and Syriacs — should compile a dossier documenting war crimes and crimes against humanity that were committed against their communities in North and East Syria. The database should be organized regionally and thematically. It should identify crimes by location: Afrin, Deir Ez Zor, Jazira, Raqqa, Tabqa, Manbij, and Euphrates. It should also consider the categories of crimes that are prohibited under international humanitarian and human rights law: 

  • Killings/murder. 
  • Rape/sexual violence.
  • Torture and failure to provide mortal remains.
  • Forced displacement/demographic change/building apartment buildings for relocating Arabs in Afrin.
  • Kidnapping.
  • Confiscation of private property.
  • Bombardment by war planes and artillery.
  • Desecration of religious sites.
  • Destroying the environment.

The database should include specific details for each crime: 

  • Date, time, location of the crime, and description of the crime.
  • Names, dates of birth or any other identifying information of the victim(s) of the crime.
  • Names, dates of birth or any other identifying information of the perpetrator(s) be they individuals or groups.
  • Evidence in the form of photos, videos, audio recordings, written testimonials [or any other physical evidence available].
  • Statements from witnesses, with their names, dates of birth or any other identifying information.

Action is required. The longer it takes to document war crimes, the more difficult it becomes to ascertain the facts. The memory of victims can be honored by documenting what happened to them. No one is exempt from prosecution. Mercenaries can be prosecuted. So can Turkish officials who orchestrated their crimes. Hakan Fidan and President Tayyip Erdogan are not above the law. Mr. Phillips is Director of the Program on Peacebuilding and Human Rights. He previously served as a Senior Adviser and Foreign Affairs Expert at the State Department during the Clinton, Bush and Obama administrations. His relevant books include Frontline Syria: From Revolution to Proxy War and How America Abandoned the Kurds and Lost the Middle East. 

Mr. Phillips is Director of the Program on Peacebuilding and Human Rights. He previously served as a Senior Adviser and Foreign Affairs Expert at the State Department during the Clinton, Bush and Obama administrations. His relevant books include Frontline Syria: From Revolution to Proxy War and How America Abandoned the Kurds and Lost the Middle East. 

Washington Kurdish Institute

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