The Cyprus Issue and the International Criminal Court/Kibris Sorunu ve Uluslararasi Ceza Mahkemesi.

• Author: Erhan Bulut, Zeynep

Introduction

As of 2021, Turkey has yet to accede to the Rome Statute of the International Criminal Court (ICC). The reasons behind Turkey's attitude towards the ICC involve a wide range of different dynamics and complicate Turkey's engagement with the Court. The Cyprus issue is considered as one of the reasons that may concern Turkey in accepting the jurisdiction of the ICC. Although the Republic of Cyprus (RoC) (1) itself has not officially applied to the ICC, the intention to take Turkish citizens before the ICC was announced by a Cypriot official, who is represented by Shurat Hadin (2), in July 2014. The petition claimed that "[s]ince 1974, Turkey has implemented a systematic policy of colonization of the occupied part of Cyprus, from which it expelled approximately 170,000 Greek Cypriots" (3) to change the demographic character of the island and create faits-accomplis. (4)

In respect to this allegation, the first significant consideration of the petition rests on the 4th Geneva Convention of 1949, Relative to the Protection of Civilian Persons in Time of War. Article 49(6) of this convention maintains that the "occupying Power shall not deport or transfer parts of its own civilian population into the territory it occupies." (5) Besides the Geneva Convention, the complaint petition mainly refers to Article 8(2)(b)(viii) of the 1998 Rome Statute. According to this article, "the transfer, directly or indirectly, by the Occupying Power of parts of its own civilian population into the territory it occupies, or the deportation or transfer of all or parts of the population of the occupied territory within or outside this territory" is a war crime. When considering these allegations, it should be noted that the complaint petition mainly refers to two criminal activities: 1) transfer of the civilian population into the occupied territories, and 2) settlement activity. On this ground, the actus reus (physical elements of a crime) requires a deep analysis to understand whether it covers only population transfers or both population transfers and settlement activity.

On these grounds, and as a first issue, this article will analyze the preconditions for the case. First, the statehood issue of the Turkish Republic of Northern Cyprus (TRNC) will be discussed because this is an important point in relation to the ICC's jurisdiction. Following this, the time limit (ratione-temporis) of the ICC's jurisdiction for war crimes will be considered. Regarding the statehood issue and the time limit, the arguments of both sides will be taken into consideration to make a judicious conclusion. Finally, the article will discuss how these related norms would be applied by the ICC in the case of Cyprus and whether Turkish civilians and military officials can be held responsible for the crimes allegedly committed on the Cypriot territory since 1974. Due to the lack of progress in this situation, the study will be based on the potential future judicial practice of the ICC.

Preconditions to the Exercise of Jurisdiction

Jurisdiction of the ICC and Statehood under the Rome Statute

The main basis for the exercise of jurisdiction is called a pre-condition. (6) As a matter of course, this issue is dealt with prior to the case itself. The subject of the case can only be dealt with after all preconditions are fulfilled. Pre-conditions for the ICC to practice its jurisdiction are governed by Article 12 of the Rome Statute. As well as the general preconditions for the practice of jurisdiction, it also regulates the main provision regarding the territorial jurisdiction (ratione loci jurisdiction) of the ICC. In contrast to temporal jurisdiction (ratione temporis jurisdiction), which is governed under Article 11 as a separate provision, the statute of the ICC does not establish a particular provision for the territorial jurisdiction of the ICC; thus Article 12 is the main legal basis for determining ratione loci the jurisdiction of the Court.

According to Article 12, the Court may only exercise jurisdiction under certain circumstances: if the alleged criminal is a national of a 'state party' or a 'state otherwise accepting the jurisdiction of the Court' or the United Nations Security Council (UNSC) has referred the situation to the prosecutor, regardless of the nationality of the suspect or the place of the crime. In short, Article 12 establishes "how a State may accept the jurisdiction of the ICC concerning the core crimes, namely by becoming a Party to the Rome Statute." (7) Article 12(2) requires either the territorial State or the Nationality State to be among the State Parties. The last provision is that Article 12(3) Rome Statute "provides for territorial and nationality non-State Parties to ad hoc accept the exercise of jurisdiction by the ICC." (8)

Regarding the jurisdiction of the ICC, the Rome Statute is predicated upon the term 'state'. (9) In Article 12 the jurisdiction of the ICC mainly revolves around 'state parties'. The court was designed as a treaty-based institution and thus its jurisdiction comes from states' consent. For this reason, it is accepted that the ICC does not have a universal jurisdiction. Its jurisdiction could not be broadened to all violations of humanitarian law throughout the world. (10)

In light of this brief argument, it is apparent that the statehood issue of the TRNC must be discussed and analyzed as a preliminary issue. On these foundations, the question as to whether the TRNC is 'the territory of a state party' or the land of the TRNC is a non-state party territory, should be decided. The question therefore would be the extent to which the ICC's jurisdiction over the RoC would involve the TRNC, a non-party state.

Statehood of the Turkish Republic of Northern Cyprus

Regarding the statehood issue of the TRNC, instead of following the mechanical application of the Montevideo Convention, the Prosecutor's decision on Palestinian statehood should be assessed because some scholars claim that both territories, the TRNC and Palestine, have been occupied respectively by Turkey and Israel. (11) Thus, both situations have common grounds regarding territorial and temporal jurisdiction of the ICC. Moreover, the current practices of the ICC signal that the UN's perception of 'statehood' has much more importance than other criteria.

In January 2009, the Palestinian National Authority submitted a declaration to the ICC under Article 12(3) of the Rome Statute. As already pointed out, Article 12(3) of the Statute provides for territorial and nationality non-State Parties to ad hoc accept the exercise of jurisdiction by the ICC. With this declaration, Palestine (non-state party in 2009) allowed the Court to practice its jurisdiction for the crimes committed within its own territory since 1 July 2002. However, the prosecutor (previous prosecutor Luis Moreno-Ocampo) rejected the Palestinian request three years later on 3 April 2012, drawing the following conclusion:

competence for determining the term 'State' within the meaning of Article 12 rests, in the first instance, with the United Nations Secretary General who, in case of doubt, will defer to the guidance of the General Assembly. The Assembly of States Parties of the Rome Statute could also in due course decide to address the matter.

This conclusion was justified pursuant to Article 125 of the Rome Statute, which regulates that "[t]his Statute is subject to ratification, acceptance or approval by signatory States. Instruments of ratification, acceptance or approval shall be deposited with the Secretary-General of the United Nations." Article 125(3) also concludes that "[t]his Statute shall be open to accession by all States. Instruments of accession shall be deposited with the Secretary-General of the United Nations." Relying on Article 125, it was decided that the Secretary-General of the United Nations would decide on this matter as the depository power of the Rome Statute. (12)

Article 125 undoubtedly says that only 'states' can be party to the statute. The term 'state' exists many times in the Rome Statute yet remains undefined. (13) Thus, the question exists whether Palestine is a state and who will decide on this matter. It is clear under the Rome Statute that being a party state is the main precondition for the Court's jurisdiction. As a natural consequence, this precondition relies on a further precondition that concerns the legal existence of an entity as a 'state' in the international arena. In other words, a 'legal personality' (as a state) must exist to assume responsibility under international law.

For the previous Prosecutor Luis Moreno-Ocampo, the Statute of the Court does not give him authority to decide on the statehood of Palestine. (14) Thus, the Prosecutor did not decide on whether Palestine was a state under the Rome Statute to accede to the ICC. As a matter of fact, it was implied that making a decision on the statehood of Palestine would not fall within the jurisdiction of the ICC. Without a decision from the Prosecutor, answering the question of Palestinian statehood was left to the UN General Assembly, which is a political body, and the ICC Assembly of State Parties.

On 29 November 2012, the General Assembly adopted a resolution on the status of Palestine in the UN. (15) Palestine was granted the status of 'non-member observer state', and thus the legal issue regarding the statehood of Palestine was arguably solved. On 1 April 2015, Palestine officially became a member of the ICC. Moreover, the Prosecutor also concluded that the Assembly of States Parties of the Rome Statute could also decide on the issue of Palestinian statehood. Only a few member states declared that "the designation "State of Palestine" should not be construed as recognition of a state of Palestine..[..]" (16) and there was no concrete objection from other member states. Thus, the Assembly of States Parties welcomed Palestine as a new state party on 7 January...