THE CRIME OF GENOCIDE IN THE NEW TURKISH PENAL CODE

Mahmut Koca

Abstract

In this article, the crime of genocide which is defined in the Art. 76 of Turkish Penal Code, is examined. Genocide has been considered as the most serious crime which concerns the whole mankind by international law. Despite this character of the crime, humanity has witnessed the incidents of genocide in Germany, Bosnia and Ruanda in the last century. The incidents experienced during the WWII had forced the international community to act jointly, hence the United Nations General Assembly adopted the “Convention on the Prevention and Punishment of the Crime of Genocide” on December 9, 1948. On the other hand, the incidents in Bosnia and Ruanda during 90’s accelerated the half-century struggle of the international community and has been concluded with the establishment of an international criminal court which will exercise jurisdiction over international crimes including genocide.

Although Turkey had ratified the Convention on Genocide in 1950, she did not fulfill her obligation to criminalize the acts of genocide in her internal law before June 1, 2005. (with Turkish Penal Code (no. 5237) which came into force at that date.) In the Art. 76 of Turkish Penal Code, the crime of genocide is defined as the commitment of one of the conducts which take place within the article against the members of a national, ethnic, racial or religious group to annihilate that group partially or as a whole in accordance with a plan. According to this definition the offender may be anyone, but the victim should be a member of a national, ethnic, racial or religious group. The victim should have been offended because of being a member of a group like this and the objective of the offender should be to annihilate not only the victim but also the group he belongs to, partially or as a whole. For the occurrence of the crime, it is not necessary that the offender achieve his goal and it is sufficient that he acts for a purpose like this. The distinctive feature of this crime which distinguish it from the crimes of murder, assault and torture is related to the subjective element of the crime. The existence of intention is not enough and the offender should have acted for a goal mentioned above. The existence of any excuse or justification seems not possible concerning this crime. In the case of the commitment of this crime abroad, exercising the jurisdiction depends on the demand of the Minister of Justice. Even if a judgment had been given in a foreign country, the suspect can be retried upon the demand of the Minister of Justice. (TPC art.13)