Fight Against Terrorism as A Pretext for Abusing Basic Human Rights

Article 1 of the Turkish anti-terror defines terrorist conduct to include any act done by one or more persons belonging to an organization with the “aim of changing the characteristics of the Republic” or “weakening or destroying or seizing authority of the State” by means of “pressure, force and violence, terror intimidation, oppression or threat.” Article 2 gives a definition of “terrorist offender” that includes any member of an organization with a terrorist aim, even if he or she does not commit a crime in furtherance of the terrorist aim. Article 314 of the Turkish Penal code also establishes the offence of “being a member of an armed terrorist organization”. 

On this combination of provisions, anyone deemed a “member of a terrorist organization” can be qualified as “terrorist offender”, regardless of any specific involvement in any criminal conduct. The Grand Chamber of the European Court of Human Rights (ECtHR) has most recently, in the case of Selahattin Demirtas v. Turkey (2)11, established that Turkey’s anti-terror provision was not foreseeable. Terrorism charges in Turkey are widely misused against Gülen movement supporters to arbitrarily arrest and detain them. 

Turkey has been abusing its anti-terror legislation since 2016: in 2016, 52.100 persons have been taken into custody on terrorism charges in Turkey, while only 1.002 persons were taken into custody on terrorism charges all over Europe; in 2017, 61.070 persons in Turkey versus 1.219 all over Europe; in 2018, 72.293 persons in Turkey versus 1.056 all over Europe; in 2019, 20.567 in Turkey versus 1.100 all over Europe.

Arbitrary Detention

The notion of ‘arbitrary’ includes both the requirement that a particular form of deprivation of liberty is taken in accordance with the applicable law and procedure and that it is proportional to the aim sought, reasonable and necessary. ‘Arbitrariness’ is not to be equated with ‘against the law’, but must be interpreted more broadly to include elements of inappropriateness, injustice, lack of predictability and due process of law.

To enable it to carry out its tasks, the Working Group on Arbitrary Detention has adopted specific criteria applicable in the consideration of cases submitted to it. Consequently, according to the WGAD, deprivation of liberty is arbitrary if a case falls into one of the following five categories:

Category I: When it is clearly impossible to invoke any legal basis justifying the deprivation of liberty (as when a person is kept in detention after the completion of their sentence or despite an amnesty law applicable to them);

Category II: When the deprivation of liberty results from the exercise of the rights or freedoms guaranteed by articles 7, 13, 14, 18, 19, 20 and 21 of the Universal Declaration of Human Rights and, insofar as States parties are concerned, by articles 12, 18, 19, 21, 22, 25, 26 and 27 of the International Covenant on Civil and Political Rights;

Category III: When the total or partial non-observance of the international norms relating to the right to a fair trial, spelled out in the Universal Declaration of Human Rights and in the relevant international instruments accepted by the States concerned, is of such gravity as to give the deprivation of liberty an arbitrary character.

Category IV: When asylum seekers, immigrants or refugees are subjected to prolonged administrative custody without the possibility of administrative or judicial review or remedy; and

Category V: When the deprivation of liberty constitutes a violation of international law for reasons of discrimination based on birth; national, ethnic or social origin; language; religion; economic condition; political or other opinion; gender; sexual orientation; or disability or other status, and which aims towards or can result in ignoring the equality of human rights.

Torture

As one of the most universally recognized human rights, the prohibition of torture has attained status as a jus cogens or peremptory norm of general international law, also giving rise to the obligation erga omnes (owed to and by all States) to take action against those who torture. Therefore, the prohibition against torture is a bedrock principle of international law as a jus cogens rule.

No national emergency, however dire, ever justifies its use. No one may ever be returned to a place where they would face torture. Many countries and armed groups nonetheless have engaged in torture.

We are committed to pressing government authorities to act to prevent torture, as well as bringing those who engage in torture to justice. We also work to ensure that victims of torture obtain redress, including an enforceable right to fair and adequate compensation, and full rehabilitation.

Enforced disappearance

An enforced disappearance is considered to be the arrest, detention, abduction or any other form of deprivation of liberty by agents of the State or by persons or groups of persons acting with the authorization, support or acquiescence of the State, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law (Article 2 of the ICPED and Preamble of the Declaration on the Protection of all Persons from Enforced Disappearance)

It is characterized by three cumulative elements (defined in A/HRC/16/48/Add.3):

(1) Deprivation of liberty against the will of the person;
(2) Involvement of government officials, at least by acquiescence;
(3) Refusal to acknowledge the deprivation of liberty or concealment of the fate or whereabouts of the disappeared person.

A disappearance has a doubly paralysing impact: on the victim, who is removed from the protection of the law, frequently subjected to torture and in constant fear for their lives; and on their families, ignorant of the fate of their loved ones, their emotions alternating between hope and despair, wondering and waiting, sometimes for years, for news that may never come.

Enforced disappearance has frequently been used as a strategy to spread terror within societies. The feeling of insecurity generated by this practice is not limited to the close relatives of the disappeared, but also affects their communities and society as a whole.

Extrajudicial Abductions / renditions

Extrajudicial abductions, or also known as extraordinary rendition, is state-sponsored forcible abduction in another jurisdiction and transfer to a third state.

There is a strong pattern of Turkish intelligence services (MIT) practicing illegal extraterritorial abductions on Turkish citizens with the help of domestic authorities (the Turkish government states that it has abducted 116 people from 27 countries since 2016). Those case have resulted in judicial decisions and condemnations of the Human Rights Committee, the European Court of Human Rights, the Working Group on Arbitrary Detention.

The Turkish government is running an intense campaign of transnational repression, across the America, Europe, Middle-East, Africa and Asia, with heavy reliance on renditions. The process is now clearly identified: Turkish government and its intelligence services persuade States to hand over individuals without due process, or with corruption or cooptation of host state institutions, such as the local police or intelligence services (the head of the intelligence agency in Kosovo had to resign following scandalous cases of renditions in March 2018). 

In its global transnational repression efforts since 2014, Turkey has become the number one country carrying out illegal renditions from other states – sometimes without the knowledge and/or support by local authorities. Since 2016 the Government of Turkey has in at least 30 different countries across the Americas, Europe, the Middle East, Africa and Asia. MİT has a history of working with mafia groups to render Turkish citizens from different countries. A joint letter UN rapporteurs reveal that MIT established a separate unit in 2017 to perform illegal acts abroad. Mafia groups had kidnapped Turkish citizens from Kazakhstan, Moldova, Malaysia and several African countries and handed them over to MİT operatives.

Refugees in Turkey

Turkey continues to host the largest number of refugees worldwide, as the number of people forcibly displaced across the world due to conflict, violence and persecution hit record levels. Turkey currently hosts some 3.6 million registered Syrian refugees along with close to 320,000 persons of concern from other nationalities.

The Republic of Turkey is a party to the 1951 Refugee Convention and 1967 Protocol, maintaining the geographical limitation to the 1951 Convention, thus retaining resettlement to a third country as the most preferred durable solution for refugees arrived due to the events occurred outside of Europe. Turkey has been undertaking legislative and institutional reforms to build an effective national asylum system in compliance with the international standards. In April 2013, Turkey’s first ever asylum law, the Law on Foreigners and International Protection, was endorsed by the Parliament and entered into force on 11 April 2014. The Law sets out the main pillars of Turkey’s national asylum system and established the Directorate General of Migration Management (DGMM) as the main entity in charge of policy-making and proceedings for all foreigners in Turkey. Turkey also adopted Temporary Protection Regulation on 22 October 2014, which sets out the rights and obligations along with procedures for those who are granted temporary protection in Turkey.

However, many reports and news suggest that Turkey deports, bans, arbitrarily detains and uses violence against refugees.

Women and Girls in Turkey

Women and girls everywhere are still subject to significant disadvantage as the result of discriminatory laws and practices. Equality has not been achieved in any country in the world, and pledges to eliminate discriminatory laws have not been fulfilled.

In Turkey, women and girls have been put in prison after the failed coup attempt on July 15th, 2016, which affects them disproportionately. There are also women with children, pregnant women and women with health issues in Turkish prisons. This is a clear violation of human rights as well as Turkish Law on the Execution of Sentences and Security Measures.

OHCHR reports about the situation of mothers and newborns; “Mothers and children exposed to such practices face serious risks of health complications, stunting and even death. Their situation may amount to torture, cruel, inhuman or degrading treatment. Due to stress, many women report being mentally unwell and unable to breastfeed or to look after their children who are imprisoned with them….”

The recent withdrawal from the Council of Europe Convention on Preventing and Combating Violence against Women and Domestic Violence, on 20 March 2021, not only is unconstitutional, as it came on the form of a Presidential Decision without any form of parliamentary consultation; it also says a lot on the current backlash women’s rights face in Turkey. It is actually the first Turkish withdrawal from a human rights treaty: this is raising serious concerns as to the Turkish commitment to human rights treaties and it might not be an isolated phenomenon. The withdrawal, result of an attested authoritarian and populist trend of the Government, also shows that pleasing anti-gender, misogynistic conservative voices, for domestic political purposes, is actually more important for the Government than the respect of women’s rights. This all the more worrisome when women’s rights situation is facing serious backlashes: since the AKP is running the country, the rate of femicide has been constantly increasing. Since 2010, more than 3.000 women could have been murdered by husband or partner. Femicide, as the most serious attack against women’s rights, is always a strong indicator of the women’s rights situation in any country.

Freedom of expression, journalists, human rights defenders

Freedom of expression is the cornerstone of democracy, which allows individuals and groups to enjoy several other human rights and freedoms.

Freedom of the media is essential to enable democratic, free and participative societies. Journalists and the media are crucial to ensure transparency and accountability for public and governmental authorities. Yet media freedom and the safety of journalists are under threat around the globe.

In recent years, a rise in the scale and number of attacks against the physical safety of journalists and media workers, as well as of incidents affecting their ability to exercise freedom of expression, including threats of prosecution, arrest, imprisonment, denial of journalistic access and failure to investigate and prosecute crimes against them has been observed.

Human rights defenders (HRDs) are all persons, who individually or in association with others, act to promote or protect human rights peacefully.

Hate speech

Hate speech is a menace to democratic values, social stability and peace. As a matter of principle, hate speech must be confronted at every turn and be tackled in order to prevent armed conflict, atrocity crimes and terrorism, end violence against women and other serious violations of human rights, and promote peaceful, inclusive and just societies. Hate crimes and speech are quite prevalent in Turkey. Among the victimized groups against hate crimes have been ethnic minorities (i.e., Kurds, Armenians, Caucasians, Laz, Romans, and Arabs); religious minorities (i.e., Jews, Orthodox Christians, Assyrians, Ezidis, Alawites, and Jafaris); Muslim groups, sects, and movements; LGBTQ communities; and recently Syrian refugees.