The Istanbul Criminal Court of Peace has issued arrest warrants for Israeli Prime Minister Benjamin Netanyahu, the defence minister Israel Katz and others.
While it makes the Recep Tayyip Erdoğan government look plucky it also raises questions of parochial interest and the merits of the accuser.
A November 7 statement from the Istanbul chief public prosecutor’s office said that as many as 37 suspects were on the list, though not all were named. In addition to Netanyahu and Katz, it includes National Security Minister Itamar Ben-Gvir, the Israeli Defense Forces Chief of Staff, Lt Gen Eyal Zamir and Navy Commander David Saar Salama.
They are charged under Article 77 (crimes against humanity) and Article 76 (genocide) of the Turkish Penal Code.
Reference is made to the March 21 bombing of the Turkish Palestinian Friendship Hospital, the October 17, 2023, attack on the Al-Ahli Baptist Hospital, the deliberate destruction of medical equipment by Israeli soldiers and the blockading of Gaza and the denial of humanitarian aid to the enclave.
The October attack on the humanitarian Global Sumud Flotilla in international waters and the seizure by Israeli forces of crew members is also mentioned.
This enterprise is not without problems. Türkiye is not particularly amenable to punishing genocide within the context of its own, strictly invigilated history.
Such nationalistic, convenient laxity brings to mind George Orwell’s formidable argument, made in the October 22, 1943 issue of The Tribune. Reviewing a work outlining the case for trying the Italian fascist leader Benito Mussolini for war crimes, Orwell trawls through the record of hypocrisy among British figures who saw much merit in the skull-cracking antics of Italy’s fascist leader — at least when things seemed rosy.
Orwell pointed to the problems of those making such accusations, given that a trial for Mussolini might well be justified alongside those of the then current Prime Minister Winston Churchill, or former Prime Minister Ramsay MacDonald and even the Chinese Nationalist leader Chiang Kai-shek.
When seeking to place leaders of a country in the dock, be careful what you wish for.
To this day, it is forbidden to describe the sadistic and opportunistic killing of Armenians within the Turkish ethno-state that arose from the stricken body of the Ottoman Empire as genocidal. The same could be said of the brutal treatment of the Kurdish minority, long time victims of the “Turkification” program. Power, as always, smudges the record.
Given that Turkish prosecutors are not coming to the table with clean hands, any such move will cause not only discomfort to human rights advocates but stabbing derision from critics.
Israeli Foreign Minister Gideon Sa’ar observed that “in Erdoğan’s Turkey, the judiciary has long since become a tool for silencing political rivals and detaining journalists, judges and mayors”. This is not a charge Erdoğan can be easily acquitted of, given his successful efforts to bring the entire judiciary under the control of the executive branch.
Independent judges and prosecutors have been imprisoned. Sympathetic Islamists and nationalists have swelled the ranks.
Critics in the United States described Türkiye’s charges as “nonsense” — a stock practice in a country which adulates international law even while battering it.
Michael Rubin, senior fellow at the American Enterprise Institute, is a case in point.
Striking in his criticism of the Turkish effort, Rubin worries about the implications of targeting democratically-elected leaders for how they mistreat their citizens. What of, say, violent acts and misdemeanours committed against India’s Muslim minorities?
It becomes clear that Rubin assumes that leaders of “democratic” societies are above suspicion when it comes to human rights violations, while Islamic states are opportunistic and villainous. “The Indian government,” he said, “should not ignore the outrage, for what Erdoğan targets Israel with today, he will apply to India tomorrow.”
Were Erdoğan successful in getting any Israeli into court, it would “only be a matter of time until he and his Pakistani, Qatari, and Malaysian allies try to do the same with democratically elected Indian leaders like Prime Minister Narendra Modi, and senior Indian diplomats and military officers as part of a similar ‘lawfare’ campaign to pursue their Kashmir and Khalistan ambitions.”
This is not to say that charges of genocide won’t fly.
The International Court of Justice in The Hague is currently tasked with assessing if, as South Africa’s submission alleges, Israel’s conduct in Gaza constitutes genocide.
While the judges have yet to reach a decision on the genocide question, they have made several provisional orders cautioning Israel to abide by the UN Genocide Convention. The UN Independent International Commission of Inquiry on the Occupied Palestinian Territory was somewhat bolder, asserting in its September 16 report that four of the five elements of genocide outlined in the Convention had been met by Israel’s ruthless waging of war in the Gaza Strip.
Many civil society and human rights organisations, including the Israeli human rights organisation B’Tselem, have made similar findings.
Governments all over the world often misuse international law as a pretext to attack their enemies. The Turkish court’s effort might be another play in the politicisation of human rights.
But states and their legal organs can also exercise universal jurisdiction in punishing the most abhorrent of crimes — crimes against humanity, war crimes, genocide and torture.
The other option, which is being stubbornly resisted by Israel, US and Türkiye, is to become a party to the Rome Statute and International Criminal Court. In refusing to become parties to the statute, all three are in violent agreement.
[Binoy Kampmark lectures at RMIT.]