Turkey Opened the Door to the European Court of Human Rights for Syrian Victims
As most readers will be aware, victims of the Syrian conflict have scant opportunities for justice. Russia has vetoed a French-led effort to refer the situation to the International Criminal Court (ICC), so instead, there are a patchwork of trials in Europe under universal jurisdiction. To date, those trials have focused on individual extremist fighters, though there is one ground-breaking trial against Syrian government defectors and another involving the Yazidi genocide, and further investigations are underway. Those efforts are laudable but far from comprehensive.
However, with Turkey’s occupation of parts of northern Syria, a new venue may now be available to victims: the European Court of Human Rights (ECtHR). Turkey is a State party to the European Convention for Human Rights & Fundamental Freedoms (ECHR) and, in a similar context, the ECtHR has held that Turkey was obliged to adhere to the standards of the Convention not only in Turkey, but also in areas under its effective military and administrative control such as Cyprus (See Loizidou v. Turkey; Cyprus v. Turkey). Turkey has effective control over parts of northern Syria, with the sustained presence of its military, imposition of Turkish law, and administration of schools and other public functions. This degree of territorial control may have pried open jurisdiction for Syrians at the ECtHR to seek redress for human rights abuses by Turkish forces (and militias) in Syria.
Turkish Occupation and Violations in Syria
There is strong evidence that Turkey and its proxy militias have committed numerous human rights abuses and war crimes in Syria. This started in 2016 with the invasion and looting of Azaz and Jarablus in Operation Euphrates Shield, premised on Turkey’s fight against terrorism. Turkish violations — including suppression of freedom of expression, property expropriation, and forced demographic change — continued within Afrin in 2018. More recently, at the end of 2019, Turkey took President Donald Trump’s announcement of U.S. military withdrawal from Syria as an invitation to invade a broad swath of northeast Syria, with reports of summary executions and the use of white phosphorous, a prohibited means of warfare, against the local population.
Historical Antecedents – Cyprus v. Turkey
Turkey’s invasion of northern Syria recalls an earlier period in history with the war in Cyprus. In 1974, Turkey occupied Northern Cyprus, establishing a new “state” it named the Turkish Republic of Northern Cyprus (“TRNC”), with the presence of 30,000 troops and the establishment of administrative functions such as schools and courts. This new entity was not recognized as a State by the international community and was deemed to be little more than a Turkish vassal. Following the exercise of control of Northern Cyprus, however, Turkey was accused of numerous human rights abuses including property expropriation, curtailment of religious and educational rights, forced demographic change, authorizing the trial of civilians by military courts, and failures to investigate the fate of missing persons. A complaint was brought before the ECtHR by the government of Cyprus on behalf of its aggrieved citizens.
Turkey challenged the court’s jurisdiction since the alleged conduct had not occurred within Turkey’s borders. Based on well-established jurisprudence, the Grand Chamber of the ECtHR rejected this argument, holding that its jurisdiction “is not restricted to the national territory of the Contracting States,” and further that Turkey’s responsibility can extend to “acts and omissions of their authorities which produce effects outside their own territory.” Responsibility may arise “when as a consequence of military action – whether lawful or unlawful – it exercises effective control of an area outside its national territory.” (para. 76). International law is clear on this point, with the International Court of Justice (ICJ) holding in the Wall case that Israel was obliged to guarantee respect for human rights treaties in the occupied Palestinian territories (paras 111-113).
Turkey also asserted that it was not responsible for any of the purported human rights violations because they were only attributable to the TRNC. The ECtHR rejected this argument as well, holding that the acts and omissions of the TRNC were imputable to Turkey:
Having effective overall control over northern Cyprus, its [Turkey’s] responsibility cannot be confined to the acts of its own soldiers or officials in northern Cyprus but must also be engaged by virtue of the acts of the local administration [TRNC] which survives by virtue of Turkish military and other support. (para. 77).
This judgment forms part of a long line of jurisprudence before the ECtHR on the scope of states’ extraterritorial human rights obligations. The easiest cases have been those, like in Cyprus and now Syria, where the state exercises such “effective control” over foreign territory. There are other cases where such control is lacking and the state is still found liable for human rights abuses abroad.
The ECtHR is open to Syrian victims
Returning to the situation in the north of Syria, the corollaries are inescapable. Turkey has occupied parts of northern Syria, establishing administrative offices and maintaining a contingent of troops and proxies. The administration of these regions answers to and survives only thanks to the backing of the Turkish government and military. By any reasonable measure, Turkey’s presence in northern Syria has all of the trappings of an occupation as it retains effective control over these areas.
As a result, Turkey must respect the mandates of the ECHR, and Syrians have a right to bring claims for violations of their human rights by Turkey before the ECtHR. If such claims are established before the ECtHR, it could order compensation be paid to Syrian victims by the Turkish government. The amount of compensation would depend on the specific circumstances of each case. A judgement by the ECtHR would also be a source of embarrassment for the Turkish government and potential leverage in peace negotiations.
A possible hurdle to any suit against Turkey for such violations is the requirement that petitioners exhaust local remedies — a jurisdictional prerequisite before the ECtHR. Would Syrian victims be required to first bring their grievances before a military or civilian court in occupied northern Syria? Possibly not, as the ECtHR has dispensed with this requirement where exhausting local remedies would be futile or ineffective. On this basis, Syrian victims should have direct access to the ECtHR – albeit in cases limited to human rights abuses committed by Turkey.
Nine years into a conflict replete with all manner of human rights violations, Syrian victims deserve justice. The doors to the ICC remain closed due to a Russian blockade. Some measure of justice is available to certain victims who can identify perpetrators living in Europe in the form of universal jurisdiction cases making their way through the courts. But these cases are far from comprehensive. Through its invasion and occupation of northern Syria, Turkey has provided Syrian victims with another opportunity for justice. Although allegations of human rights abuses could only be brought to the ECtHR based on violations by Turkey (or possibly Russia, which — as a State party to the ECHR— is also subject to ECtHR jurisdiction), it is an opportunity that should not be overlooked. As such, the Syria Justice and Accountability Centre encourages Syrian victims in occupied Turkish territories to bring complaints before the ECtHR to guarantee the human rights of Syrians and to prevent future violations.
By: Roger Phillips
Source: Just Security