What is a War Crime in General
War crimes come into consideration in international or internal armed conflicts. The acts constituting war crimes are listed in the continuation of the text and are limited in number. That is, they are individually listed in international texts. Therefore, it is not possible to expand or narrow them down. Essentially, it refers to the entirety of severe and unforgivable violations of the laws of war initiated by the official authorities of the warring state against the enemy state, the occupied nation, or the property and citizens of the occupied territories.
As expressed in the Geneva Conventions and its additional protocols, intentional acts of aggression towards structures, materials, health institutions, transport vehicles, and personnel bearing the distinctive emblems defined in the Geneva Conventions under the framework of international law are explicitly characterized as war crimes. Particularly, a special status has been recognized for innocent children who must be kept outside the merciless scenes of war, and targeting them under any circumstances is strictly prohibited. This is not just a reflection of the war but also seen as a heartless aggression against the most vulnerable of humanity. The provisions of the Convention represent steps taken to slightly mitigate the bloody and ruthless nature of war and to protect innocent lives. However, violations of these provisions represent a moral and humanitarian collapse that will leave deep scars in the conscience of the civilized world and humanity.
What is Genocide and War Crime? Genocide
Genocide is the most dangerous crime that threatens the existence of humanity by endangering life, health, and dignity. This crime can target not just individuals, but entire human communities, engaging in horrific acts against them. Genocide has various forms: Physical genocide means attacks on life and health, while biological genocide is the act of exterminating the lineage of a community. Cultural genocide deprives a community of its language and culture. The International Criminal Court, based on the Rome Statute, recognizes genocide as one of the most serious crimes. As defined in the 1948 Genocide Convention, genocide is the act of partially or completely destroying a community. This can be carried out by killing members of the community, causing them serious harm, worsening their living conditions, impeding their fertility, or forcibly transferring their children to another group. This definition is similarly articulated in the International Criminal Tribunal for the former Yugoslavia. Genocide is included in Article 6 of the Rome Statute. As understood from the text of the Statute, it can be summarized as actions aimed at partially or completely destroying a community for any reason.
War Crime Although it has different definitions according to international treaties and agreements (such as the Hague Conventions of 1899 and 1907, the Geneva Conventions of 1949) and international criminal tribunals (Nuremberg International Military Tribunal, International Military Tribunal for the Far East (Tokyo), International Criminal Tribunal for the former Yugoslavia, International Criminal Tribunal for Rwanda, International Criminal Court), in essence, it can be described as:
"the dangerous violation of customary international law in international armed conflicts."
In this article, we will focus on war crimes as defined in the Rome Statute of the International Criminal Court. War crimes are specified in Article 8 of the Rome Statute. According to this:
(a) Grave breaches of the Geneva Conventions:
Intentionally killing people.
Experimenting on and torturing humans.
Causing great suffering or serious injury.
Destroying or taking property without military necessity.
Forcing protected persons or prisoners to fight in enemy forces.
Depriving protected persons or prisoners of the right to a fair trial.
Unlawfully deporting or imprisoning individuals.
Taking hostages.
(b) Serious violations of the laws and customs of international conflicts:
Intentionally attacking non-combatant civilians.
Intentionally attacking civilian and non-military targets.
Intentionally attacking peacekeepers or humanitarian workers.
Attacks causing severe damage to nature.
Attacking undefended and non-military areas.
Attacking a soldier who has surrendered.
Deceptive use of certain symbols.
Settling or displacing populations in occupied territories.
Attacking hospitals and cultural sites.
Harmful medical experiments.
Treacherous killing or wounding.
Declaring an intention to kill war prisoners.
Illegally seizing or destroying enemy property.
Revoking enemy rights.
Forcing enemy nationals to fight against their own country.
Looting captured areas.
Using poison or poisoned weapons.
Using harmful gases.
Using bullets that cause excessive harm to the human body.
Using excessively harmful weapons or methods.
Behaviors insulting human dignity.
Sexual violence.
Using civilians for protection.
Attacking individuals bearing protected symbols.
Starving civilians.
Using children under 15 in combat.
(c) Serious violations of the Geneva Conventions in non-international conflicts:
Violence against unarmed individuals.
Insults to human dignity.
Taking hostages.
Extrajudicial executions.
What are Crimes Against Humanity?
What are the differences between Genocide and War Crimes?
Crimes Against Humanity are fundamentally different from genocide or war crimes. These crimes are recognized both in Article 77 of the Turkish Penal Code and in the Rome Statute as mentioned above.
According to Article 77 of the Turkish Penal Code, crimes against humanity include:
Intentional homicide.
Intentional injury.
Torture, cruelty, or enslavement.
Deprivation of personal liberty.
Subjecting individuals to scientific experiments.
Sexual assault, sexual abuse of children.
Forcible impregnation.
Forcing into prostitution. These acts, when committed systematically and as part of a plan with political, philosophical, racial, or religious motives against a section of the society, constitute crimes against humanity. For these crimes, excluding intentional homicide, the punishment will be no less than 8 years in prison. If committed through intentional homicide, the penalty will be aggravated life imprisonment.
In the Rome Statute, crimes against humanity are regulated in Section 7 and include:
Murder,
Extermination,
Enslavement,
Deportation or forcible transfer of population,
Imprisonment or other severe deprivation of physical liberty in violation of fundamental rules of international law,
Torture,
Rape, sexual slavery, enforced prostitution, forced pregnancy, enforced sterilization, or other forms of severe sexual violence,
Persecution of any identifiable group or community for reasons including but not limited to political, racial, national, ethnic, cultural, religious, gender, or other universally recognized as impermissible under international law,
Enforced disappearance of persons,
Apartheid,
Other inhumane acts of a similar character intentionally causing great suffering or serious injury to body or mental or physical health, when committed as part of a widespread or systematic attack against any civilian population.
The key distinction between war crimes and crimes against humanity is that the latter can be committed during times of peace as well as war. While war crimes can only be committed in times of war, crimes against humanity can occur in both war and peace. Another important distinction is the intent behind the crime. General intent (knowledge and will) is sufficient for war crimes, whereas special intent (targeting elements uniting members of a particular part of the society) is required for crimes against humanity.
The difference between crimes against humanity and genocide lies in the gravity of the crime. Both can be committed in times of war and peace, require special intent, and involve similar acts. However, the key difference is that the outcome of genocide is considered more severe compared to crimes against humanity.
Judicial Process in Genocide and War Crimes
When war crimes are committed, the jurisdiction lies with the International Criminal Court (ICC). An investigation by the ICC Prosecutor can be initiated upon referral by member states or by the United Nations Security Council under Chapter VII of the United Nations Charter considering the likelihood of one or more crimes being committed. Additionally, under Article 15 of the Rome Statute, the Prosecutor can initiate investigations proprio motu (on their own initiative). Once an investigation is opened, the Prosecutor has the authority to gather information or documents and take written and oral statements.
If the Prosecutor decides to deepen the investigation based on the severity of the incident and the information and documents available, a request for investigative authority is made to the Pre-Trial Chamber of the ICC. If the Pre-Trial Chamber is convinced that there is reasonable evidence to deepen the investigation and that the case falls within the ICC's jurisdiction, it can authorize the commencement of the investigation.
The Pre-Trial Chamber is equipped with various duties and authorities from the receipt of the crime report until the initiation of the case. However, the main trial process will be conducted by the Trial Chamber. Although the Trial Chamber tries to reach a decision by consensus, if this is not possible, a decision will be made by a simple majority.
If it is decided that crimes within the jurisdiction of the ICC have been committed, the concerned accused can be sentenced to a maximum of 30 years imprisonment or life imprisonment depending on the circumstances. In addition to imprisonment, a fine and forfeiture of proceeds, property, and assets derived from the crime may also be imposed. Appeals against the court's decision can be made on the grounds of procedural errors, factual errors, legal errors, or any other reasons that could affect the fairness or accuracy of the trial process or decision. The Appeals Chamber can reject the appeal, accept it and overturn the decision, amend the sentence, or order a retrial by another Trial Chamber.
Are Israel's Interventions Self-Defense?
Israel claims that all its interventions are in response to attacks against it and asserts that it has the right to do so under the right of self-defense. However, for it to be considered legitimate self-defense, the interventions must be proportional to the attacks from Palestine and aimed solely at preventing these attacks. The definition of legitimate self-defense inherently includes only the intent to prevent an attack. However, considering the actions taken by Israel, it is not feasible to categorize them under legitimate self-defense. Moreover, an occupation is taking place. Therefore, in the context of the events unfolding, legitimate self-defense can only apply to Palestine. Hence, what is claimed to be self-defense cannot be considered as such.
Israel’s Genocide and War Crimes Committed to Date
When we attempt to investigate the war crimes committed by Israel in the Gaza Strip, which has been under blockade since 2007, we encounter numerous violations that would take pages to list. However, since the establishment of the International Criminal Court, significant conflicts have occurred in 2008, 2012, 2014, 2018, 2021, 2023, and 2023, during which violations listed in the Rome Statute have been repeatedly committed. To summarize these conflicts;
2008-2009 The Israeli attacks started on December 27, 2008, and lasted until January 17, 2009, breaking the six-month ceasefire agreement between Israel and the Islamic Resistance Movement Hamas, which was brokered under the auspices of Egypt in June 2008. During this period, Israel carried out attacks by air, land, and sea against Gaza. Numerous institutions, hospitals, civilian homes, and facilities were targeted, resulting in the loss of many civilian lives and health teams. Over 1,300 Palestinians lost their lives in these 22 days of attacks.
2012 The war that lasted for seven days started on November 14, 2012, after Israel assassinated Ahmed Al-Jaabari, the deputy leader of Al-Kassam. In this war, 155 Palestinians lost their lives due to Israeli air strikes on Gaza, and hundreds were injured.
In this war, Israel specifically targeted media offices and civilian vehicles. The air strikes were also accompanied by psychological warfare tactics, including dropping leaflets and making phone calls to civilians, warning them of impending air strikes on their homes.
2014 This war, which began on July 8, 2014, was one of the most intense. The war started after protests in Gaza following the killing of three Palestinians and lasted approximately seven weeks. As a result, 2,174 Palestinians lost their lives, tens of thousands were injured, 17,132 houses were destroyed to the extent of being uninhabitable, and 65,000 Palestinians were left homeless. Numerous state institutions, police stations, factories, 17 hospitals, 35 ambulances, and 102 health workers were targeted, and 10 hospitals and 55 care centers out of 44 were closed, along with dozens of health facilities. The material damage from these attacks amounted to 3.6 million dollars.
Conflicts in 2018, 2020, 2021, and 2022 The losses in Israel's attacks vary year by year, but they have continuously committed crimes by carrying out air strikes on hospitals, schools, public institutions, and directly targeting civilians, resulting in the deaths of hundreds of Palestinians, including children, women, and the elderly.
2023 As of October 7, Israel has been carrying out armed attacks indiscriminately against all Palestinians, as well as restricting basic necessities such as energy and water.
Since then, over 4,300 air strikes have been carried out, using over 25 tons of explosives, equivalent to the power of two atomic bombs. These attacks have damaged over 212,000 homes, with 35,000 being completely destroyed, and directly targeted 214 schools. Thousands of civilians, including women, children, and the elderly, along with 135 health workers, 40 journalists, 18 civil defense workers, and 49 religious figures, have been killed. In these attacks, 27 families have been entirely wiped out by Israel. These attacks continue as of November 19.
Ultimately; Considering all periods, war crimes, genocide, and crimes against humanity, as specified in the statute, have all been committed separately. Acknowledging the commission of war crimes and crimes against humanity may be more straightforward, but even for the determination of genocide, which requires a more detailed analysis, all actions taken by Israel during this war make this even unnecessary. Considering that since October 7, 27 families no longer exist, all energy and water networks have been cut off, and the attacks continue relentlessly with increasing violence and lawlessness, it is not possible to deny the commission of genocide.
Ongoing and Past Trials at the ICC
Democratic Republic of the Congo: Investigations initiated at the request of the country's president have exposed war crimes, particularly the recruitment of children under the age of 15. Thomas Lubanga, Germain Katanga, and Mathieu Ngudjolo Chui have been arrested for these crimes.
Uganda: Following the president's request, investigations have revealed crimes against humanity and war crimes. Arrest warrants were issued for the leaders of the Lord's Resistance Army (LRA) in October 2005, but none of the suspects have been apprehended.
Sudan: Investigations into crimes against civilians and allegations of "ethnic cleansing" in Darfur have led to arrest warrants for several officials, including President Omar Hassan Ahmad Al-Bashir. This was the ICC's first arrest warrant for a sitting head of state.
Central African Republic: The investigation, initiated due to the limited capabilities of local courts, is ongoing. Former president and vice-president face allegations of murder and rape (2006).
Kenya: Following the post-2007 election violence, summonses were issued for six individuals. This investigation, started by the prosecutor's own initiative on March 8, 2011, was the first of its kind.
Libya: Muammar Gaddafi was issued an arrest warrant for crimes against humanity, but the case was dropped after his death (June 27, 2011).
Ivory Coast: Former President Laurent Gbagbo was arrested for four separate counts of crimes against humanity related to post-election violence. He is the first former head of state to be tried since the court's establishment in 2002 (November 23, 2011).
Mali: The government's request led to an investigation of murder, rape, and use of child soldiers amid conflicts between Tuareg rebels and government forces (January 16, 2013).
Central African Republic II: The investigation into war crimes and crimes against humanity in the CAR, reignited in 2012, began following a government referral in May 2014.
Georgia: The prosecutor initiated an investigation on January 27, 2016, into crimes against humanity and war crimes committed around South Ossetia between July 1 and October 10, 2008.
Burundi: The prosecutor initiated an investigation on October 25, 2017, into crimes against humanity committed in or outside Burundi by Burundian nationals from April 26, 2015, to October 26, 2017.
Palestine: Following Palestine's accession to the Rome Statute on January 2, 2015, the ICC gained jurisdiction. The investigation, which began on January 16, 2015, examines crimes committed in Palestine since June 13, 2014.
Bangladesh/Myanmar: Crimes against the Rohingya population in Myanmar, particularly in Rakhine State in 2016 and 2017, are being investigated, including the part committed in neighboring Bangladesh.
Afghanistan: Crimes against humanity and war crimes committed in Afghanistan since May 1, 2003, are under investigation.
Philippines: Crimes committed in the Philippines between November 1, 2011, and March 16, 2019, particularly in the context of the 'war on drugs' campaign, including murder as a crime against humanity, are being examined.
Venezuela I: The situation referred to the ICC by a group of States on September 27, 2018, led to the announcement of investigations starting on November 3, 2021.
Ukraine: The situation referred to the ICC by 43 State Parties between March and April 2022 concerns crimes committed in Ukraine since November 21, 2013. The focus is on the entire territory of Ukraine.
Colombia: The ICC reviewed the situation in Colombia on October 28, 2021. The national authorities were found to effectively investigate and prosecute Rome Statute crimes, so the ICC decided not to open an additional investigation. However, the situation can be reassessed if significant new developments arise.
Guinea: The ICC reviewed the situation in Guinea on September 29, 2022. It was found that national authorities effectively investigated and prosecuted crimes, meaning ICC intervention was not required. The ICC decided to close the situation, but it can be reconsidered if significant changes occur.
Nigeria: The ICC's situation in Nigeria is ongoing. On December 11, 2020, the Prosecutor decided that there was a reasonable basis for war crimes and crimes against humanity committed in Nigeria. The ICC plans to apply to the Pre-Trial Chamber for permission to open an investigation and is taking measures to protect the integrity of any future investigation.
Honduras: The ICC evaluated the situation in Honduras on October 28, 2015. Based on the information available, it was decided there was not enough basis to open an investigation, meaning the situation did not warrant ICC intervention.
Korea: The ICC reviewed the situation in the Republic of Korea on June 23, 2014. The available information did not meet the legal requirements to open an investigation. However, the ICC is ready to initiate a preliminary examination and investigation if necessary regarding new actions under its jurisdiction on the Korean Peninsula.
Comoros, Greece, and Cambodia Registered Vessels: The ICC reviewed this situation on November 29, 2017. Considering new information obtained between 2015-2017, it was concluded that the current information did not provide enough basis for an investigation.
Iraq/United Kingdom: The ICC reviewed the situation in Iraq/UK on December 9, 2020, and decided that potential cases are currently not admissible at the ICC. This decision can be reassessed based on new information or evidence.
Gabon: The ICC reviewed post-election violence in Gabon in 2016 on September 21, 2018. Based on the information obtained, it was concluded that the events did not constitute a crime against humanity as defined by the ICC and there was no reasonable basis for the crime of incitement to genocide.
Venezuela II: The situation in Venezuela II is ongoing. On February 13, 2020, the Venezuelan government reported its situation to the ICC, meaning the ICC continues to evaluate it.
Bolivia: The ICC evaluated the situation in Bolivia on February 14, 2022. Based on the information obtained, it was concluded that there was no reasonable basis to believe that crimes under ICC jurisdiction were committed in Bolivia.
Democratic Republic of the Congo II: The second situation in DRC was reported to the ICC on May 23, 2023, following the government's initial report in 2004. The ICC is continuing to evaluate this new situation.
Would Israeli Officials Be Tried at the ICC, and What Would Happen If They Were?
Whether Israeli officials can be tried at the International Criminal Court (ICC) is a complex matter in terms of international law and political relations. With the State of Palestine officially joining the ICC in 2015, the court's jurisdiction became applicable to situations in the Palestinian territories. This development has made it possible for the court to examine alleged crimes committed by Israel in the occupied Palestinian territories. According to international legal norms, for states or individuals to be tried at the ICC, crimes within the court's jurisdiction must have been committed, and these crimes must be defined in the ICC Statute. When considering the trial of Israeli officials, the court evaluates the nature of the crimes committed, the geographical location of the crime, and whether the case can be examined by the court.
If an investigation is opened against Israeli officials, the court will examine whether these crimes can be classified as war crimes, crimes against humanity, or genocide within the framework of international law. The ICC's authority to investigate situations in Palestinian territories is legitimized on the basis of the State of Palestine accepting the court's jurisdiction and becoming a member, despite Israel not being a member of the ICC. The Israeli government has stated that it does not recognize the jurisdiction of the ICC and will not implement its decisions. If Israeli officials are tried in court, it would be a turning point in international law.
What Can I Do as a Turkish Citizen?
There can certainly be various actions taken on behalf of Palestine. However, due to the nature of this article, the focus will be primarily on legal or law-related actions.
Filing a Criminal Complaint: There is concrete evidence that Israeli officials have committed serious crimes such as Genocide, Crimes Against Humanity, Intentional Homicide, and Torture, as listed in the Turkish Penal Code, especially for the period starting from October 7, and also before this date. Such criminal complaints are significant in the context of international law and human rights violations. Turkish citizens can file complaints with the prosecutors in their areas to investigate these allegations and initiate the necessary legal processes.
These complaints can motivate the judicial authorities in Turkey and represent a significant step towards protecting fundamental values such as respect for human rights and the supremacy of law, as established in international law.
Petitions to Official Institutions: Given Israel's presence based on global trade relations, Turkish citizens can target domestic and international firms and institutions that have trade relations with Israel. It is important to make official applications to pressure these entities to review their direct or indirect collaborations with Israel. These applications can be made through CIMER or directly to the institutions within the scope of the right to petition.
Boycott: Turkish citizens can join the boycott of Israeli-origin products and services to exert economic pressure on Israel. This action can directly affect Israel's economy and indirectly influence its political decisions. Although boycotts are not legally defined as a right, they have been considered a right according to the decisions of the European Court of Human Rights. Therefore, there is no direct legal contradiction.
Pressure on Decision-Makers: Turkish citizens can lobby political leaders, parliamentarians, institution heads, and decision-makers in Turkey to influence their stance on the Palestine issue. This can be done through various means such as writing letters to parliament members, political parties, and government officials, submitting requests through CIMER, organizing campaigns, and creating public opinion on social media. Such actions can influence Turkey's policy on the Israel-Palestine issue and increase support for Palestine on international platforms."
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