In a statement on May 20, International Criminal Court (ICC) Prosecutor Karim Khan said Israeli Prime Minister Netanyahu, Defense Minister Galan, Hamas President Yahya Sinwar, Hamas military chief Ibrahim al-Masri and Hamas political bureau chief Ismail Haniyeh were charged with war crimes and crimes against humanity. He called for the issuance of arrest warrants.
According to the Rome Statute establishing the ICC, the Prosecutor does not have the power to make arrests. This power resides in a Pre-Trial Chamber (Pre-Trial Chamber), composed of three judges. If, as a result of the investigation conducted by the Prosecutor, he concludes that there are reasonable grounds to believe that a crime provided for in the Rome Statute has been committed, he may request the YÖD to issue an arrest warrant. In making this request, he presents his reasons and conclusions to the Ministry. The Court may also hold a hearing before making a decision at the request of the Prosecutor.
This procedure is the result of an agreement made at the preparatory conference for the Rome Statute. One of the biggest topics at the conference was the mandate of the ICC Prosecutor. Concerned that the Prosecutor would investigate cross-border operations, such as in Sudan or Afghanistan, the United States had called for a Prosecutor with limited powers and reporting to the UN Security Council. Meanwhile, at the conference, a group led by Canada and Germany presented a proposal to establish a Prosecutor’s Office with broad powers independent of the Security Council. Finally, an agreement was reached on a Prosecutor’s Office controlled by a judge through the YÖD. The Office would have broad powers regarding investigations. It could also conduct investigations if necessary.
These powers held by the YÖD are incompatible with the fundamental principles on which criminal justice is based. A criminal trial consists of a confrontation between the prosecution and the defense, represented by the prosecutor. A judicial authority, impartial to both sides, arrives at the truth that emerges from this confrontation. He decides accordingly. However, the YÖD can intervene in the work of the prosecutor and replace him if necessary.
The ICC Prosecutor had already been investigating war crimes in the Palestinian Territories since 2021. Now, this investigation has been expanded to include events in Gaza. Members of the Prosecutor’s Office went to the crime scenes. They interviewed the victims. They collected evidence. In addition, the Prosecutor’s Office set up a committee of experts. Made up of six prominent international lawyers, the committee investigated the facts underlying the request for arrest and prepared a report. As a result of all this, the Prosecutor’s Office concluded that there were reasonable grounds to believe that crimes had been committed within the jurisdiction of the ICC and applied for the issuance of an arrest warrant for YÖD.
The crimes against humanity and war crimes allegedly committed by the Hamas officials whom Prosecutor Karim Khan wants arrested – Sinwar, al-Masri and Hamiyeh – include murder, hostage-taking, rape and other acts of sexual violence, torture, and inhuman treatment of hostages.
The crimes against humanity and war crimes allegedly committed by Israeli Prime Minister Netanyahu and Defense Minister Galant include starvation as a means of war, deliberate killing, health damage, the deliberate targeting of civilians, and atrocities.
In both cases, prosecutors allege that these crimes against civilians were carried out as a widespread and systematic attack of state policy.
The ICC prosecutor said the siege imposed on Gaza had prevented the entry of aid such as food and medicine, put pipes bringing clean water inoperable and killed those bringing aid. He said a million people had been condemned to starvation. He stressed that Israel had the right to protect its own people, but this did not exclude Israel’s obligations arising from international humanitarian law.
The prosecutor’s request for arrest warrants against Israeli officials has generated strong reactions in Israel and the United States. Statements threatening ICC officials and their families have been published in the press. There have also been reports that the US Congress is considering imposing sanctions on ICC officials.
The ICC Prosecutor also included these threats in his statement, stating that if such threats continue, he will invoke Article 70 of the Rome Statute, which states that any attempt to influence or pressure the ICC is considered a crime within the jurisdiction of the ICC.
What is noteworthy about the request for Karim Khan’s arrest is that it does not mention the crime of genocide at all, but instead calls for his arrest on charges of war crimes and crimes against humanity. This is because a lawsuit against Israel for genocide has been filed with the International Court of Justice (ICJ), which has yet to rule on the matter, and because it is difficult to prove the crime of genocide.
Humanitarian law, i.e. the rules to be followed during war and provisions aimed at protecting civilians regulated by the 1949 Geneva Conventions, also constitute war crimes under the Rome Statute. Israel is also a party to the Geneva Conventions. Thus, when Prosecutor Karim Khan rejects Israel’s claim of self-defense, he reminds Israel of its obligations regarding humanitarian law arising from the Geneva Conventions. These obligations apply not only in international conflicts between states, but also in conflicts between states and non-international armed groups such as Hamas.
It is estimated that it will take several weeks for the YÖD to make a decision on the arrest request. If the Court accepts the arrest request and issues an arrest warrant, the 124 states that are parties to the Rome Statute will be obliged to seize the three Hamas and two Israeli officials who are the subject of the arrest warrant and hand them over to the ICC for trial in their countries. States that are not parties to the Rome Statute have no such obligation. For this obligation to be valid for states that are not parties to the Rome Statute, a decision of the UN Security Council is required. However, even if there is no legal obligation in this regard, nothing prevents states that are not parties to the Rome Statute from cooperating with the ICC and handing over these persons from their own countries to the ICC.
As the ICC prosecutor will not request an arrest without relying on solid evidence, it is highly likely that the YÖD will accept the prosecutor’s request and issue an arrest warrant.
Even if such a decision were legitimate, it would also have important political consequences. Taken together with the genocide case at the International Court of Justice, it would increase pressure on Israel and further isolate it on the international stage. It would make it difficult for the United States to maintain, or at least make conditional, the unconditional support it gives to Israel.
“On the other hand, the prosecutor’s investigation has revealed that Hamas has also committed crimes against humanity and war crimes, which are serious and unacceptable crimes. Going forward, it will be impossible to take a fair, balanced and correct attitude in the conflict between Israel and Hamas by looking at the crimes against humanity committed by one side and ignoring the crimes of the other side.”
The prosecutor’s request for arrest appears to have divided Western countries: Biden has sharply criticized the ICC, while France and Belgium have said they support the prosecutor’s decision.
If YÖD issues an arrest warrant, what impact will it have on Turkiye? Prime Minister Turkiye is not among the 124 states parties to the Rome Statute. Why Turkey is not a party to the Rome Statute is a separate issue. But because YÖD is not a party, even if it issues arrest warrants for the five people mentioned by YÖD and these people come to Turkey, Turkey has no legal obligation to arrest them and hand them over to the ICC.
However, it is inevitable that such a decision will have political consequences for Turkiye. With Turkish-Israeli relations at their lowest, these consequences must be considered in terms of relations with Hamas. One of the individuals for whom an arrest warrant is sought, Ismail Haniyeh, was in Turkey until recently. He was treated like a head of state. It was accepted by the president. They embraced the president. We accepted him as a freedom fighter. But Mr. Haniyeh is one of three Hamas leaders seeking arrest for crimes against humanity, including hostage taking, rape, deliberate killing and torture.
There are also reports that Hamas will set up a base in Turkey. Can you imagine the problems it would cause for Turkey if an organization whose leaders have committed crimes against humanity were to establish a base there?
This should be read in conjunction with President Erdogan’s declaration of national mourning for Iranian President Ibrahim Raisi, who committed crimes against humanity and caused the deaths of thousands, including the beating to death of Mahsa Amini because her hair was visible.
We have a strange sense of justice. We open our doors to foreign leaders who commit crimes against humanity, embrace them, and mourn when they die. And yet we lock up our own citizens for years in prison despite international court rulings determining they committed no crimes. Is this contradiction because our government has little to do with the law?
Who is Lisa Turmen?
Riza Turmen, one of Turkey’s leading human rights lawyers and diplomats, was born in Istanbul and graduated from the Faculty of Law at Istanbul University.
He received his Master of Laws from McGill University in Montreal, Canada, and his PhD in Political Science from the Faculty of Political Science at Ankara University.
After completing his law internship, he joined the Ministry of Foreign Affairs in 1966. He held various positions in the Ministry.
In 1985, he was appointed the first Turkish ambassador to Singapore.
He served as head of the Turkish delegation to the 1993 UN World Conference on Human Rights and the OSCE Conference on the Human Dimension.
He was appointed Ambassador to Switzerland in 1994. In 1996, he became Turkey’s Permanent Representative to the Council of Europe.
In 1998, he was elected a judge of the European Court of Human Rights by the Parliamentary Assembly of the Council of Europe. He served in this position until 2008.
After returning to Turkey in 2008, he wrote a column for Milliyet newspaper for 10 years.
He became a member of Parliament as a CHP Izmir deputy in the 2011 elections. He served as a member of the Turkish Grand National Assembly’s Judicial Affairs Committee and Constitutional Reconciliation Committee.
In 2009, Riza Turmen was awarded the Turkish Bar Association’s Lawyer of the Year Award, the Turkish Journalists Association’s Press Freedom Award, the Middle East Technical University’s Merit Award, and in 2010 the Modern Life Support Association’s Republic Award.
He has published many articles in national and international journals and book chapters on human rights and law. He has published two books, The Power of the Powerless – Human Rights in Turkey and The Search for Democracy in Turkey.
Riza Turmen currently remains active in non-governmental organizations working in the areas of democracy, human rights and the rule of law, and serves as co-spokesperson for the Turkish Bar Association’s Human Rights Center.
Lisa Turmen has a strong interest in the arts and has been playing the cello for about 40 years. Since 2013, she has focused on fundamental rights, human rights, the judgments of the European Court of Human Rights, and general law and politics.
