While the Turkish state's occupation attacks against North-East Syria continue,  different institutions, especially the Autonomous Administration, point out that the Turkish state and its mercenary allies are responsible for war crimes. 

Turkey is carrying out these attacks outside its borders, in violation of international law. 

ANF talked with Professor Marco Sassoli about the operations of the Turkish state and whether they comply with international law or not.

Professor Marco Sassoli, International Law Specialist at the Faculty of Law at the University of Geneva, is also an advisor to the International Criminal Court (ICC) Prosecutor in international humanitarian law. 

He has made a name for himself in the field of international law. Sassoli is also the director of the Geneva International Academy of Humanitarian Law and Human Rights.

Turkey has been carrying out military attacks against north-eastern Syria for over a month. Do you think that Turkey has violated international law?

Yes, there is already a general consensus on this. Turkey is acting in violation of international law. For example, Switzerland and the European Union, have stated that Turkey is carrying out these military operations in a manner incompatible with the right to use legitimate force.

Turkey said these operations are an act of self-defense (légitime défense) but could not prove that there has been a violation or attacks by Kurdish groups from the North-East Syrian border. Of course, international law is state-centered (protection of the state), and so far the Syrian state has not approved and in fact opposes this attack. Incursion over the borders of another country is a clear violation of international law.

Many civilians were massacred and hundreds of thousands of people left their places during the attacks. Amnesty International and some international institutions drew attention to war crimes in their reports. How to assess this situation?

I do not know much about what happened in the field, and if there were civilian massacres and displacements, this is a serious violation of the Geneva conventions. The obligation lies with all states, because all states are obliged to protect these conventions and to oppose those who violate them.

If these crimes are identified and proven, the states have an obligation to bring the responsible to court. For example, if a Turkish general in charge of these crimes comes to Switzerland for any reason, the Swiss prosecutor has a responsibility to initiate an investigation into that person. 

In practice, this is unfortunately not the case. However, if the suspect is in Switzerland or Germany, the competent prosecutors of these countries may have him arrested if they have sufficient information and evidence that this person has civil society organizations in the field should collect information and evidence about the offenders and submit them to the prosecutor so that the prosecutor can quickly investigate them.

Former ICC Prosecutor Carla Del Ponte said the Turkish state and President Erdogan had committed war crimes in North-East Syria and should be brought to court. How do you evaluate this, is there any possibility of such a trial?

Not only the Turkish state committed war crimes, ISIS and the Syrian regime also are responsible for war crimes. But this is such a fact, that in this final phase we see it here.

Turkey is responsible for war crimes there. But the important thing is not just establishing whether Turkey has carried out war crimes or not, it is improtant to make Turkey accountable for it. 

In such an international conflict, Turkey should let the Red Cross to enter the area and verify what happened in the region, gather information about crimes and conduct inspections. But as far as I know, Turkey does not allow the Red Cross access to that area.

So, to what extent is it necessary to deal with forced displacement and civilian massacres, and doesn't the occupation law come into play here?

Forced displacement is forbidden, even when it comes to occupation law. We cannot deal with all those who migrated considering that they were all forcibly displaced because some of those people decided to leave in order not to live under Turkish occupation or fear of conflicts. 

What is important here is that people were forced to migrate. As a result, some areas today, are under the control of Turkey or its affiliated groups and this case demonstrates that we are faced with occupation. Turkey would then have to apply the law of occupation.

It is strictly forbidden to kill civilians, prisoners of war, for whatever reason; all these arein violation of international humanitarian law and war crimes.

You mentioned the Geneva Conventions. Is Turkey’s war on Syria territory not forbidden by these conventions?

The Geneva conventions apply during the period of armed conflicts but do not prohibit armed conflicts. The UN requirement prohibits armed conflicts because the UN is obliged to protect international peace and security. 

The UN Charter also recognizes the right of nations to self-determination. I think today the Kurdish people are the biggest people who are prevented from exercising their right to self-determination. The UN requirement also concerns the right to use force. But the Geneva conventions deal with the legal or not legal power and forces used in conflict zones.

International law defines it as occupation if one country controls the territory of another country by force. Although the occupation is not prohibited by humanitarian law, the occupying force must respect and apply the 4th Geneva convention. These conventions, for example, forbade the removal of people from occupied territories. The rights of the occupied people are legally guaranteed.

According to occupation law, Turkey cannot settle on the occupied region different people. In this case, Turkey also argues that another reason for its operation is to allow the return of Syrian refugees to these Syrian lands. 

So, how should the demographic change in the invaded region be handled?

If this is the case, it is forbidden and constitutes a crime. I have no knowledge of such a project by Turkey. International law forbids the settlement of non-citizens in a country, Syria in this case. For instance, if Arabs are intended to be settled in that region, one should look at the reason why those people are brought there. If the intention is to settle people from other parts of Syria, then not international law but Syria’s domestic law comes into play.

If the people who are meant to be settled in the invaded region do not come voluntarily, or if Turkey evacuates the homes of the native population and settles the people it desires in their place, this is a strict violation that means expelling the local people from their land.

Again, the destruction or seizure of people’s homes in the invaded areas and displacement of the native population means Turkey’s clear violation of the Geneva Conventions which Turkey has to preserve and respect. At this point, the responsibility of all states comes up again.

Kurds denounce an ethnic cleansing by the Turkish state against themselves. Does ethnic cleansing have a legal definition?

International law does not have an article called ethnic cleansing, but the crimes forbidden by humanitarian law could be assessed in this scope. For instance, crimes such as destruction of people’s homes, forced displacement of people, executions and rape are handled under the notion of ethnic cleansing. There is no particular article on ethnic cleansing as such a case has not been present.

Why is the international community, which is responsible to adhere to humanitarian law and the Geneva Conventions, silent on the mentioned violations?

This is a problem of the international law, the implementation of which depends on the desire of the states. I can say that there is no silence but hypocrisy. Many states criticise Turkey over its violation of international law but they eventually continue their relations with Turkey. For example, the US which has criticised Turkey’s offensive, receives Erdoğan at the White House.

Similarly, Germany and France also criticised Turkey but did not issue a warning nor launched legal procedures over the violation of Geneva Conventions. Considering the obligation of every state to respect and hold to Geneva Conventions, every state must force Turkey to respect international law on the lands it has invaded. However, no state fulfills its responsibilities in this regard because of political reasons and Erdoğan’s threat to send refugees to Europe.

What responsibility does the UN Security Council have with regard to this invasion?

The UN Security Council is liable to preserve international security and achievement of peace. For this reason, it is obliged to drive Turkey out of Syria. There is another problem at this point. Through its double politics, Turkey receives the support of both Russia and the US and thus does not allow the enactment of a resolution against itself. Whatever the consequence is, the UNSC is obliged to make sure that Turkey withdraws from Syrian lands.

Regarding the war crimes you have mentioned, how and by whom could the perpetrators be put on trial or which authorities could be appealed for this to be done?

What matters is to make a distinction between Erdoğan’s administrators. For instance, a minister as a state official may not be arrested while attending a conference in Geneva. On the other hand, those responsible for crimes may not be high level persons and they could be subject to an investigation and get arrested upon their arrival here. The prosecutors working on Syria at the UN have documents and evidences on the people involved in crimes. These prosecutors can take such an action through a state.

International Criminal Court (ICC) prosecutors do not have the authority to do this because neither Turkey nor Syria signed the conventions acknowledging the conditions of the ICC. For this reason, the UNSC could launch an investigation against war criminals at an international court to be established in line with its own decision.

Apart from these, however, every state has the authority to put those violating the Geneva Conventions on trial. This depends on the policies of the states and the presence of enough evidences and documents on the incidents. For example, if you want to have a war criminal arrested here through a prosecutor from Switzerland, that prosecutor must have witnesses and hard evidences proving that person to have committed the crime in question.

It is not a matter of common knowledge but the ‘International Impartial and Independent Mechanism’ which was established by the UN to investigate the war crimes in Syria possesses documents on those involved in crimes. They give the dossiers they have only to the prosecutor of a country or to the ICC prosecutors. This mechanism’s mandate is not to document the war crimes committed by the Syrian regime and organisations like ISIS alone, but also to investigate the war crimes perpetrated by Turkey or allied groups in North-East Syria.

On the other hand, Turkey’s crimes against the Kurds shouldn’t be confined to Syria alone. The Turkish state has been waging an armed conflict against the Kurds within its boundaries for many years. There is no international mechanism for that because the incidents are taking place within Turkey’s boundaries. However, what is happening there is indeed a serios violation of human rights.

An application could be made to the European Court of Human Rights as Turkey is a party to the European Convention on Human Rights. As you might remember, the Court of Justice sentenced England and the Netherlands over the crimes committed during the invasion of Iraq in 2003. The Court thus made it clear that the countries party to the European Convention on Human Rights cannot contravene conventions despite Iraq not being a party to the Convention. If the invaded lands are of a non-party state but are under the control of a party state, conventions can still be implemented according to the Court of Justice.

Syria is not a party to the European Convention on Human Rights but Turkey is. So, families of the persons executed in North-East Syria, or the families of the fighters taken prisoner there can well apply to the ECHR. These applications must be filed by not Kurdish institutions but by individuals. These people cannot apply to the ICC because neither Turkey nor Syria is a party to it.

If the question is whether Erdoğan could be put on trial, an investigation could be launched against him once his term as the President is over.