When President Erdoğan was officially accused of genocide.
I asked the internationally acclaimed professor of international law at the Stockholm University, Said Mahmoudi, to analyse the complaint, as well as the Swedish prosecutor’s answer. He finds nothing wrong with the prosecutor’s decision, even though there is no doubt that Erdoğan may very well be responsible for serious crimes;
What Erdoğan is responsible for concerning the Kurds cannot be characterized as genocide or crimes against humanity. Practices of the International Crime Court (ICC) and the other international criminal courts show that the threshold for considering an act as a serious international crimes is high and the requirements are strict. My assessment is that Erdoğan may be responsible for very serious crimes. But they do not meet the requirements for genocide and probably not for crimes against humanity either.
More importantly, there is a legal obstacle for commencing a criminal process against Erdoğan in the Swedish system of law.
The Swedish law provides for the so-called universal jurisdiction, which means that not only the Swedish citizens and all those who live in Sweden but also persons from other countries suspected of serious international crimes can be persecuted here. However, a foreign President, a head of state, is exempted from this rule due to the principle of state immunity under international law. Even if you accept that Erdoğan is guilty of genocide, war crimes or crimes against humanity, it is completely forbidden for the courts of one country to prosecute the head of state of another country. Current Presidents, Prime Ministers and Foreign Ministers enjoy full immunity no matter what crimes they are accused of. The only possibility is to turn to Interational Criminal Court (ICC), where immunity is not an obstacle.
The horizontal system of law
This is an old problem, maybe as old as international law itself. The beauty of International law is equivalent to its biggest problem; it can only be what States agree on. While domestic law is built on a hierarchical structure, international law is horizontal.
Since the fall of the Soviet Union, the world has agreed on several important issues, for example concerning the conviction of high- ranking politicians and commanders by international criminal courts and their punishments for serious international crimes. But according to professor Said Mahmoudi, the system of international law would be shattered if the barriers of immunity for heads of state where to be removed even at the national level:
This is the very core of the legal issue in the present case against Erdoğan in Sweden: Why should Swedish, American or any other country’s laws be more important than Turkish laws? There are 193 states in the world and each of them has exclusive jurisdiction within its own territory. If another country becomes the judge of what happens within the territory of a state, there is a risk that the whole system will be arbitrary.
Only earlier this year France, Germany and EU protested against a new American law that aims to punish companies trading with Russia and Iran. The countries that have protested argue that the US is of course free to enact laws prohibiting American companies to do business with certain countries, but it cannot exercise its jurisdiction and enforce sanctions against foreign companies for their business contacts with Russia or Iran. The analogy with the Erdoğan case is clear, professor Mahmoudi concludes:
Erdoğan is suspected of committing serious crimes, he may be responsible for massacres. He is accused of ordering the killing of civilians and people because of their membership in the Kurdish Workers’ Party. But because of his status as head of state, he enjoys immunity before the legal systems of all other countries.
So, there are two ways to go for those who want to put legal pressure on President Erdoğan. One option is to refer the case to ICC. But here as well are obstacles in the way. ICC has jurisdiction to take up cases if the suspected crime is committed by a citizen of a country that is party to the Statute of the Court or the crime is committed in the territory of such a country. The suspected crimes in the present case have taken place in Turkey and Iraq. But neither of these countries are parties to the Statute of ICC.
Another option is to get the UN Security Council to refer the case to ICC. Athough this is a legally valid way to go, it isn´t an option from a political point of view. Turkey is a member of NATO, and it is vital for some permanent members of the Security Council to keep up good relations with the country. The probability of the UN Security Counsil deciding to refer the case to ICC is as good as none.
The only realistic option – from a legal pint of view - is to wait until Mr. Erdoğan’s term of presidency will come to an end. The situation of a former head of state as regards claim of immunity before national courts is very different from current heads of state. National laws of many countries contain no prohibition against prosecution of former heads of state for serious crimes, and international law has not implied any hinder. Professor Said Mahmoudi refers to the case of Augusto Pinochet, former president of Chile, who was detained in the UK and convicted by the British House of Lords (Supreme Court) in 1999.
The action the five Swedish lawmakers took was certainly with good intention, but they hadn´t checked the Swedish law properly. All though there still might be a case once Erdoğan has left office, it could mean a very long wait. That leaves the world with only one democratic option; and that is to put Erdoğans Turkey under economic pressure.