To the Independent International Commission of Inquiry on the Syrian Arab Republic (CoI), the International, Impartial and Independent Mechanism to Assist in the Investigation and Prosecution of Persons Responsible for the Most Serious Crimes under International Law Committed in the Syrian Arab Republic since March 2011 (IIIM) and the Office of the United Nations High Commissioner for Human Rights (OHCHR):
Ensure that the process of documentation of human rights violations they conduct addresses abuses committed by all parties to the conflict, especially in light of the invasion perpetrated by Turkey in Northeast Syria.
To states and non-state actors funding opposition armed and political groups:
Ensure a tight monitoring of the entities receiving financial funding and weapons and prevent perpetrators of human rights violations from accessing these. While ensuring that these do not affect civilians, donors must establish and implement sanctions lists to prevent the funding of criminal activities, including executions of civilians and forced displacements.
2. Legal framework: The challenge of state and non-state armed actors collaborations in the pursuit of justice
On 12 October 2019, the murder of Kurdish political leader Hevrin Khalaf and her driver in Northeast Syria by Ahrar al-Sharqiya armed group, affiliated to Turkey for its Peace Spring Operation, shocked observers of the region. The murder of civilians in the context of a military operation raises a number of legal questions that will find answers in the upcoming years as cases open in domestic and international jurisdictions. The Commission of Inquiry already signalled that the conduct of armed groups could potentially constitute war crimes. Contemplating prosecutions on the basis of war crimes offers a range of options for victims to receive justice. The application of the legal regime of international humanitarian law is however subject to an array of factors that could make their prosecution uncertain, especially when considering non-state actors participating in non-international armed conflict. One of these factors lies in the “intensity” criterion, conditioning the existence of an armed conflict not of an international character that could arguably be taking place as far as Syrian militias are concerned, and that relies on elements such as the “number, duration and intensity of individual confrontations; the type of weapons and other military equipment used; the number and calibre of munitions fired; the number of persons and type of forces.” This uncertainty obliges to explore other venues for justice. The object of this analysis thus takes another angle and aims at reflecting on the applicability of the qualification of crimes against humanity to the attack perpetrated. On the basis of the Rome Statute, an array of considerations guides this reflection. Its Article 7(1) provides that constitutes crimes against humanity a series of conduct:
committed as part of a widespread or systematic attack directed against any civilian population, with knowledge of the attack.
Article 7(2) continues:
‘Attack directed against any civilian population’ means a course of conduct involving the multiple commission of acts referred to in paragraph 1 against any civilian population, pursuant to or in furtherance of a State or organizational policy to commit such attack;
Although the ICC currently has no jurisdiction over the crimes perpetrated by parties in Syria, studying the Rome Statute and reflecting on the conduct perpetrated in Syria with regards to it is critical. First, international balance of powers are not static and a referral by the Security Council, that today appears unlikely, could, in the future, reveal plausible. Second, some domestic jurisdictions, including Sweden and Germany, both at the forefront of universal jurisdiction, have in some cases included in their national legislation provisions mirroring the ICC Rome Statute. Thus, reflecting on the ICC’s legal provisions and their application by the court provides observers with valuable insights for the future of justice.
Testing the qualification of crimes against humanity entails four preliminary questions:
- What is a state or organizational policy?
- What is an attack directed against any civilian population?
- When is an attack directed pursuant to or in furtherance of a policy?
- What is a widespread or systematic attack?
While the Rome Statute is fairly clear and has been interpreted by the International Criminal Court on a number of occasions, the structure established by Turkey and the armed groups it supports for the military operation that allegedly led to the murder of the political leader and her driver instils a level of uncertainty that could impede the application of international law.
1. Provisions of international law on crimes against humanity
A. State or organisational policy
Article 7(2)(a) provides that for an attack to be qualified as a crime against humanity, it must be conducted “pursuant to or in furtherance of a State or organizational policy”. The outcome of this criterion will dictate, in the case of Northeast Syria, the entirety of the applicable laws and must addressed tediously.
Prior to the ICC, the ICTY and the SCSL, both of whose status did not require a policy, reflected on the necessity for a state to participate in the attack for a crime against humanity to be constituted. Both courts found that crimes against humanity could be perpetrated by non-state entities, and that these entities need not even be state-like. Instead, both applied a capacity-oriented approach, whereby an entity could be perpetrating crimes against humanity if it had the ability to conduct widespread or systematic attack.
The ICC later on settled on this question. Article 7(2) provides that crimes against humanity are constituted by an attack directed pursuant to or in furtherance of [an] organizational policy to commit such attack. Debates have stemmed to appreciate what could qualify as an organisation. A first interpretation given by Pre-Trial Chamber II in Katanga, found that:
The Chamber opines that the formal nature of a group and the level of its organization should not be the defining criterion. Instead, as others have convincingly put forward, a distinction should be drawn on whether a group has the capability to perform acts which infringe on basic human values.
The Chamber thus declined to consider the nature of the group or its organisational level, instead finding that, to determine whether a group was organized, the decisive criterion was the capability of the group to perform the acts infringing on basic human values. The decision was however not unanimous. In his dissenting opinion, Judge Kaul expressed his concern that too broad a conception of organization could lead to virtually any crime qualifying as crimes against humanity, and contended instead that crimes against humanity could only be committed on behalf of state-like entities.
Yet, the Trial Chamber, still in Katanga, later confirmed that:
The link of the term organization to the very existence of the attack, and not to the systematic or widespread character of it, supposes that the organization disposes of sufficient resources, means and capacities to allow the realization of a course of conduct or an operation involving the multiple commission of acts referred to in Article 7(2)(a) ICC Statute.
Since then, it has been admitted that an organisation could be the perpetrator of crimes against humanity if it had the capacity to conduct the attack. Therefore, both a state and a non-state entity can qualify as perpetrators of CAH.
B. A course of conduct involving the multiple commission of acts directed against any civilian population
The qualification of CAH aims at targeting conduct that, by their character, do not constitute ordinary crimes or a “mere aggregate of random acts”, but instead shows a pattern, a certain “degree of planning, direction or organisation by a group or organisation”.
C. An attack directed pursuant to or in furtherance of a policy
The ICC’s case law has provided a number of elements to interpret the requirement of a policy to conduct the attack. The court found, inter alia, that the policy can be inferred from different factors surrounding the commission of the crimes, and need not be formally adopted. It should also be understood distinctively from the systematic character of the attack. While the policy aims at eliminating or persecuting broadly a population, an attack would reveal systematic by involving repeated and planned actions. Additionally, while the requirement of a policy implies a leadership, this does not necessarily need be of high level. The courts also determined that a thorough organisation or the following of a regular pattern were not needed, and that the state or the organisation need to have the capacity to first develop a policy and then implement it by actively promoting or encouraging the envisaged attack. Finally, the court found that a failure to act could be considered as a policy.
D. A widespread or systematic attack
Only a widespread or systematic attack can qualify as a CAH. While a widespread attack will be characterized by its large scale and the number of persons targeted, it will be systematic if it can be demonstrated that the acts of violence are organised and with regards to the improbability of their random occurrence.
2. The challenge of a state operation led by non-state actors
Attributed to Ahrar Al-Sharqiya, the murder of Hevrin Khalaf and her driver occurred as part of a military campaign launched by Turkey that led to the forced displacement of 200,000, and the murders of 218 civilians. Perpetrated as part of a state military operation, but by a non-state armed group, it shows a hybrid character that reveals the intricacy of operations conducted by states with the support of non-state actors. This characteristic will guide this study.
Deciding whether the attack was committed pursuant to Turkey’s or Ahrar Al-Sharqiya’s policy will inform all subsequent elements. To be sure, if the attack was found to be conducted pursuant to a state policy, further assessments should determine:
- whether there was indeed a policy;
- whether the state perpetrated multiple commission of acts; and
- whether the attack led by the state was widespread and systematic.
Conversely, if the attack was found to be implemented pursuant to a non-state actor’s policy, a prosecution would have to show:
- whether there was indeed a policy;
- whether the non-state group perpetrated multiple commission of acts; and
- whether the attack led by the group was widespread and systematic.
A. Implications of the entity on behalf of whom the policy of the attack against civilians was pursued
Implications on the requirement of multiple commission of acts
If the attack that killed the Kurdish political leader was found to be the Peace Spring Operation, subsequent requirements will be considered in the paradigm of the military operation. Thus, the requirement of multiple commission of acts directed against the population will be considered in light of the operation as a whole. Therefore, all conducts committed by armed groups following Turkey’s policy, could possibly be considered to establish whether the requirement of a multiple commission of acts is fulfilled. Conversely, if it was found that the attack was conducted pursuant Ahrar Al-Sharqiya’s or the Syrian National Army’s policy, only those acts committed by the groups would be accounted for to establish a multiple commission.
Implications on the policy
In order to determine whether the attack was committed pursuant to or in furtherance of a policy, the investigation must determine whether the entity on behalf of whom the attack was admittedly perpetrated promoted or encouraged the attack against a civilian population.
If the attack was to be understood as the whole Peace Spring operation, and therefore pursuant to or in furtherance of a State policy, the qualification of crimes against humanity would rely on evidence that the state, including its armed forces, actively promoted or encouraged the attack. The ICC’s Elements of Crimes also provide that “such a policy may, in exceptional circumstances, be implemented by a deliberate failure to take action, which is consciously aimed at encouraging such attack.” This could be substantiated by the fact that Turkey resorted to the same armed groups that had already committed human rights violations including looting and arbitrary arrests in the Olive Branch Operation conducted one year before in Afrin, precluding Turkey from arguing they were not aware of the violence these groups could be drawn to commit.
If the attack against civilians was admitted to having been implemented on behalf of non-state actors, an assessment should determine whether the specific group to which the perpetrators are affiliated to, Ahrar Al-Sharqiya, was directing the attack, or whether the coalition of armed groups known as the Syrian National Coalition was. In both cases, the requirement of a policy to qualify the attack as a CAH would call for the evidence that the group was actively promoting or encouraging attacks against the population.
More, while the idea of a state following a non-state armed group’s policy is arduous to consider, especially for a politically stable state like that of Turkey, non-state armed group conducting an attack pursuant to a state policy sounds debatable. In this case, Ahrar Al-Sharqiya could indeed argue that the group was following the state’s policy, thus getting close to the status of mercenaries.
Implications on the requirement of a “systematic or widespread” attack
Should the attack be deemed that of Turkey, the qualification of crimes against humanity would require the demonstration that Turkish forces and non-state affiliated groups that took part in the Peace Spring Operation committed a systematic or widespread attack. Some preliminary elements, and specifically the toll of civilian victims, assessed at 218 in the days following the start of the operation, could suggest that the Peace Spring Operation could in and on itself consist in a widespread attack against civilians. The character systematic of the attack, assessed with regards to the organised nature of the acts of violence and the improbability of their random occurrence, could be substantiated by a variety of elements. Among them, the report by pro-government newspaper Yeni Shafaq of Hevrin’s murder as a “successful operation” suggests that the murder of the political figure was not an accident but premeditated. The support granted by Turkey in weapons, training, funding and directions could also suggest that Peace Spring Operation’s target at least included civilians as targets. The outcomes of the military operations, specifically with regards to the motives on the ground of which the operation was justified before the UN Security Council could also corroborate the character systematic of the attack. Indeed, while it could be argued that collateral victims are the necessary evil of a military operation that aims at ensuring the self-defence of the state, in the absence of any other outcome to balance the toll of civilian victims, these no longer appear to be mere collateral damages, and resemble the target of the operation itself.
On the other hand, if it was admitted that the course of conducts object of an indictment was not Turkey’s but Ahrar Al-Sharqiya or the Free Syrian Army’s, the attack would be deemed crimes against humanity if it could be substantiated that the acts the group conducted were organised, that they had a plan to commit crimes, and the capacity to coordinate their perpetration.
B. Factors potentially dictating the organisation or state at the head of the attack
An array of factors will contribute to determine whose policy -if policy there was- was implemented in perpetrating the attack against civilians. Although it is not uncommon for the ICC to deal with crimes perpetrated by non-state armed groups with the support from state entities, as was the case of the Forces Patriotiques pour la libération du Congo who received support from Rwanda or the Lord’s Resistance Army from Sudan, the context bears profound dissemblance here, the operation being that of Turkey, who declared it as a self-defence operation to the UNSC.
If it is admitted that the state of Turkey lead the operations, and terms such as “Turkish-back opposition groups” or “Turkish proxies” are commonly used, only a thorough investigation of the chain of command will reveal the hierarchy, and therefore the organisation of the operation. Some arguments in favour of a state policy include the fact that crucial elements such as the date of the launching of the operation or its area were decide by Turkey, or the numerous speeches given by President Erdoğan in support of the operation, while the fact that groups enjoyed a level of autonomy could indicate that the policy was theirs.
The policy could also inform the finding. If evidence were to reveal that the state or the group took a more prominent role in encouraging or promoting the attack, it could affect the determination of whose attack was implemented.
The courts could also find support in their reflection from other fields of international law, if, for instance, Turkey was to be found accountable for acts of Non-State armed groups by the International Court of Justice, as Nicaragua was.
On the other hand, that the government of Turkey informed the United Nations Security Council of the launching of the Peace Spring Operation, on the basis of Article 51 of the UN Charter seems inoperative and does not seem to preclude it from in fact turning into an attack against a civilian population, an attack being defined by factual elements that amount to it if reunited.
Far from being theoretical, ruling on whose policy the attack was pursuing will affect the reasoning aiming at establishing whether Mrs Khalaf’s murder was part of an attack that qualifies as crimes against humanity in its entirety.
The question now remains, on the basis of future investigations, to determine whether the attack was made pursuant a state or a non-state actor’s policy. The answer can be expected to be nuanced and to open the way to other questions.
Ruling on whose policy the attack against civilians was pursued will also bear implications in other aspects of the case, including the modes of liability and defences of the defendants. Evidently, if the courts were to find that the attack against civilians was implemented pursuant to a state policy, Turkey’s officials could incur criminal accountability for crimes against humanity, while members of Ahrar Al-Sharqiya could for instance argue that they were in a superior/subordinate relationship with regards to Turkey’s command.
These practical considerations must also lead to a reflection on the associations between state and non-state actors for the conduct of military operations. States resorting to non-state actors, whose accountability for international crimes is more intricate to establish and whose compliance with IHL are harder to ensure, in order to get around rules of armed conflict, foreshadows intricate situations for the near future.
On October 9, 2019, the Turkish President Recep Tayyip Erdoğan announced the launch of a military operation on the Syrian territory, code-named by Turkey as “Operation Peace Spring”, with the direct participation of Syrian armed opposition groups, operating under the National Army, which is affiliated to the Syrian Interim Government, an offshoot of the National Coalition for Syrian Revolutionary and Opposition Forces.
Just a day before the operation, the National Coalition for Syrian Revolutionary and Opposition Forces released a statement supporting the Turkish announcement of a looming military operation in the region. The statement said “The Coalition supports the efforts of the National Army, the Ministry of Defense and those of the Joint Chiefs of Staff. We confirm the readiness of our National Army to combat terrorism in cooperation and joint action with brothers in Turkey.”
The Minister of Defense, Salim Idris, announced on October 7, that the National Army has completed the necessary training for the upcoming military operation in northeastern Syria. This was preceded by other military arrangements, as the National Army and the National Front for Liberation announced their full integration on October 5, 2019.
STJ has issued a press release calling for investigation of state and individual responsibility for Turkey’s occupation of Syria since it breaches international law.
In this detailed investigative report, STJ presents additional information and evidence proving that members of the Ahrar al-Sharqiya group of the National Army were responsible for the execution of Hevrin and her driver; the incidence which coincided with other executions in the same place and time and code-named later “the M4 Executions”.
Efforts STJ is offering are complementary to those made by local and international media outlets in covering executions occurred that day. Similar coverage was also provided by several international and human rights organizations.
Spokesperson for the UN High Commissioner for Human Rights, Robert Colville, made a media briefing confirming the receipt of reports confirming the kill of Hevrin Khalaf. He considered that the incident could amount to a “war crime” with reference to the possibility that Turkey could be held responsible as a state for abuses committed by armed groups loyal to it, as long as Turkey effectively controls these groups, or the operations during which they occurred.
Amnesty International, in turn, released a report on 18 October 2019, in which it confirmed that Hevrin Khalaf had been beaten and killed without pity. “Turkey is responsible for the actions of the Syrian armed groups it supports, arm and direct. So far, Turkey has given these armed groups the freedom to commit grave abuses in Afrin,” Amnesty International Secretary-General Komi Naidu said.
4. Methodology of the report:
For the purpose of this report, STJ interviewed Hevrin Khalaf’s mother, her driver, two people close to her, an independent source, a military commander of the National Army and a commander of the Ahrar al-Sharqiya, between 12 and 30 October 2019. It also collected and analyzed dozens of videos, photos, medical reports and documents related to the incident, verified and analysed them with the assistance of an expert in open source verification processes.
5. Analysis of published visual evidence on the execution of Hevrin Khalaf
On October 12, 2019, a number of videos were circulated on social media, showing executions of detainees by armed opposition groups involved in “Operation Peace Spring”, specifically the Ahrar al-Sharqiya group of the National Army.
On the same day, another 18-second video was released showing an armored black Jeep (Toyota SUV) riddled with bullets. It was later proved that it belongs to the Kurdish politician Hevrin Khalaf, who was the secretary general of the Future Syria Party.
The video also shows the body of a young man, which was later revealed that it belongs to Farhad Ramadan, the driver substituted Hevrin’s main driver that day since the latter was attending his father’s funeral that day.
 Syria: Damning evidence of war crimes and other violations by Turkish forces and their allies, Amnesty International, 18 October 2019, https://www.amnesty.org/en/latest/news/2019/10/syria-damning-evidence-of-war-crimes-and-other-violations-by-turkish-forces-and-their-allies/.
 UN High Commissioner for Human Rights, Press briefing note on Syria, 15 October 2019, https://www.ohchr.org/EN/NewsEvents/Pages/DisplayNews.aspx?NewsID=25145&LangID=E&fbclid=IwAR3znXL03piDbs2BxH-o2lg3G3ZocybJYdgbbqmwdSODEbsMxq7WJ7ongQY.
 Prosecutor v Haradinaj, Case No. IT-04-84-84-T, 3 April 2008, para. 49
 Otto Triffterer and Kai Ambos, eds., Rome Statute of the International Criminal Court: A Commentary, Beck/Hart Publishing, 2016; Rodenhäuser Tilman, “Beyond State Crimes: Non-State Entities and Crimes against Humanity,” Leiden Journal of International Law 27, no. 4 (2014): 913–28, https://doi.org/10.1017/S0922156514000417.
 Prosecutor v. Bemba, No. ICC-01/05-01/08-424, Confirmation Decision, Pre-Trial Chamber, 15 June 2009,
https://www.icc-cpi.int/CourtRecords/CR2009_04528.PDF, para. 81; Prosecutor v. Gbagbo, No. ICC-02/
11-01/11-656-Red, Decision on the Confirmation of Charges, Pre-Trial Chamber I, 12 June 2014, http://www.legal-tools.org/doc/5b41bc/, para. 209; Prosecutor v. Gbagbo, No. ICC-02/11-01/11-656-Red, Decision on the Confirmation of Charges, Pre-Trial Chamber I, 12 June 2014, http://www.legal-tools.org/doc/5b41bc/ accessed 30 January 2015, para. 210.
 Tilman, “Beyond State Crimes: Non-State Entities and Crimes against Humanity.”
 Tilman.Triffterer and Ambos, Rome Statute of the International Criminal Court: A Commentary.
 Syria: Damning evidence of war crimes and other violations by Turkish forces and their allies, Amnesty International, 18 October 2019, https://www.amnesty.org/en/latest/news/2019/10/syria-damning-evidence-of-war-crimes-and-other-violations-by-turkish-forces-and-their-allies/
 Kurdish-led health authority in northeast Syria says 218 civilians killed in Turkish offensive, Reuters, 17 October 2019,
 Erdogan said in an Arabic tweet, “I kiss all members of the Mohammadi army, involved in the process of peace spring from their foreheads, and I wish success to them and all the local supportive elements that stand side by side with Turkey in this process, God bless you and was in your help”, Erdogan’s Twitter account, October 9, 2019 (last visit: November 5, 2019) https://twitter.com/rterdogan_ar/status/1181927322271830016?s=20
 “Syrian Coalition Reaffirms Commitment to Fighting Terrorism & Liberating Syria from Tyranny & Terrorist Orgs”, a press release by the Syrian National Coalition – Syria Department of Media & Communications, October 8, 2019, (last visit: October 22, 2019) http://en.etilaf.org/press/syrian-coalition-reaffirms-commitment-to-fighting-terrorism-liberating-syria-from-tyranny-terrorist-orgs.html
 “Statement regarding the Peace Spring Operation by Turkey in Northeast Syria”, STJ, October 19, 2019 https://stj-sy.org/en/statement-regarding-the-peace-spring-operation-by-turkey-in-northeast-syria/ (last visit: November 5, 2019).
 Press briefing note on Syria- Spokesperson for the UN High Commissioner for Human Rights: Rupert Colville, OHCHR, October 15, 2019, (last visit: November 9, 2019) https://reliefweb.int/report/syrian-arab-republic/press-briefing-note-syria-15-october-2019.
 “Syria: Damning evidence of war crimes and other violations by Turkish forces and their allies”, AMNESTY, October 18, 2019 (November 9, 2019) https://www.amnesty.org/en/latest/news/2019/10/syria-damning-evidence-of-war-crimes-and-other-violations-by-turkish-forces-and-their-allies/.