The limits of human rights law in an authoritarian context: Torture and impunity in Turkey

This article is part of the Democracy, Human Rights, and Governance Initiative, MEI’s look at the evolving threats to freedom, political rights, and civil liberties, as well as the struggles to achieve fair, transparent, and representative governance across the MENA region.
 

Torture has always been de facto state policy in Turkey. Even during times of “normalcy,” security officers regularly resorted to torture as an interrogation and intimidation technique, used against both political and ordinary detainees alike. During periods of emergency, unrest, or civil war, the national security paradigm enabled this practice to reach systemic levels, at times confined to a particular region and used against a particular minority, at others expanding nationwide and used against a broader group of perceived or actual dissidents. Progress in combatting torture and ill treatment has been possible at times during the tenure of “reform-minded” governments that came to power with the ambition of integrating Turkey into the European Union: the Motherland Party in the late 1980s and the Justice and Development Party (AKP) in the early 2000s. Their pro-European Union agendas made these governments susceptible to international pressure, but always with limitations. This contribution focuses on the AKP era.

The age of reforms: Instrumentalizing human rights

The AKP’s slogan of “zero tolerance toward torture” never translated into reality, not even during the peak of its EU-induced reforms. On paper, the AKP made significant progress after it came to power at the end of 2002. For example, it gave international human rights agreements that Turkey had ratified constitutional supremacy over national law. At the same time, these reforms were adopted with an instrumentalist mindset, on the eve of the European Council’s summit in December 2004. Nonetheless, in relative terms, the reforms were perceived to be enough of a breakthrough that the EU decided to start accession negotiations on the grounds that Turkey had “sufficiently” fulfilled the Copenhagen political criteria. Similarly positive assessments by other international institutions followed. In 2006, the Council of Europe’s (CoE) European Committee for the Prevention of Torture (CPT) concluded that Turkey’s revised legal framework governing detention was “capable of combatting effectively torture and other forms of ill treatment by law enforcement officials.” In 2008, partially based on this assessment, the Committee of Ministers (CoM) closed its examination of four of the five issues concerning the actions of security forces that the European Court of Human Rights (ECHR) had found to be in violation of human rights. Among the issues that the CoM stopped monitoring was procedural safeguards for those in custody.

In reality, the progress that the AKP made on paper during 2003-04 was insufficient to fulfill the Copenhagen political criteria, evident in the European Commission’s unprecedented use of the term “sufficiently” to describe a candidate country’s progress toward accession. Moreover, the reforms were largely on paper. Security forces continued to engage in torture and ill treatment; they merely did so in different locations. As the European Commission reported in 2006, the downward trend in torture and ill treatment was due to law enforcement’s resort to clandestine detentions to circumvent the safeguards introduced in official detention centers. Finally, by the time the CPT and the CoM reached their favorable decisions regarding Turkey’s progress, the AKP government had already rolled back some of its earlier reforms. Almost immediately after they started, the EU accession negotiations were halted due to the EU’s growing lack of commitment to Turkish membership and Turkey’s obstinacy concerning the Cyprus question. A reduction in EU pressure expanded the AKP’s room for maneuver in domestic politics, enabling it to adopt hawkish policies to attract Turkish nationalist votes to secure a second term in the 2007 general elections. Among the changes made in this period are the 2006 modifications to the Anti-Terror Law, which allowed the detention of suspects without a lawyer for 24 hours, and the 2007 amendments to the Law on the Duties and Powers of the Police, which authorized the excessive use of firearms by law enforcement. The latter amendments, warned the United Nations Special Rapporteur on Extrajudicial, Summary, or Arbitrary Executions, would “open the way for unlawful killing.”

The resumption of state violence in the Kurdish region

Indeed, violations of the right to life by security forces resumed, starting in the Kurdish region in southeastern Turkey. The change, initially, was in their form: excessive use of lethal force against peaceful demonstrations. In March 2006, following the funerals of 14 Kurdistan Workers’ Party (PKK) militants, riots broke out in Diyarbakır and quickly spread to other Kurdish cities. Security forces used excessive lethal force, including shooting tear gas and firing indiscriminately on the crowds, resulting in the death of 11 civilians. From then on, the excessive use of deadly force by law enforcement against peaceful protests became the new norm in the Kurdish region.

In its monitoring of Turkey’s execution of ECHR judgments concerning violations by security forces, the only issue that the CoM left open was impunity. The AKP government did not hold accountable security forces engaged in torture, enforced disappearances, extrajudicial executions, and forced displacement in the 1990s. To the contrary, it strengthened existing legal barriers to accountability. Among other measures, legal amendments adopted in 2008 introduced a statute of limitations for crimes of torture (10 years) and enforced disappearances (seven and a half years). While a subsequent amendment abolished the statute of limitations for torture, it was not made retroactively applicable.

Impunity prevailed, particularly in the Kurdish region. Courts refused to hold security forces accountable even in rare instances where they were identified. One such case concerned Aydın Erdem, a university student killed at a peaceful demonstration in Diyarbakır in 2009. Lawyers for Erdem’s family were able to recover several bullet casings that police officers had gathered from the crime scene and threw into the toilet of their station. Forensic examination identified the pistols of three police officers, who moreover admitted to the prosecutor that they used firearms against protesters and threw the spent bullet casings into the toilet. Yet, the outcome did not change: There was no investigation. The most striking sign of business as usual came with the aerial bombardment of Kurdish civilians on Dec. 28, 2011. The targets were residents of Ortasu (Roboski) and Gülyazı (Bujeh), villages located on the Iraqi border, smuggling goods with the knowledge and implicit consent of the authorities. The bombs killed 34 people, including 17 minors. A military court concluded that Turkish military jets had carried out the aerial bombardment with the approval of the General Staff and the presumed consent of the government. The military prosecutor dismissed the case, concluding that the killings were an unavoidable blunder because the victims were mistakenly thought to be PKK militants.

Following the collapse of the talks between the AKP and the PKK in February 2015 and the resumption of the war the following summer, state violence returned to the Kurdish region after a brief pause. The scale and nature of the fighting were unprecedented — even by Turkey’s standards. In July 2015, the Turkish military launched an urban operation, going into densely populated cities with thousands of combat-ready troops, tanks, armored vehicles, and heavy artillery, allegedly to remove the barricades and trenches that the PKK had built in residential areas. From August onwards, on the grounds of counter-terrorism and public security, local authorities declared around-the-clock, open-ended curfews in more than 30 towns and neighborhoods. These lasted up to several years and affected 1.6 million people. By the end of 2016, some 1,200 civilians had been killed, many due to lack of access to emergency health care, over 355,000 were displaced, and numerous others were disappeared and tortured. Not a single investigation was ever opened into any of these incidents. In fall 2021, the Turkish Constitutional Court (TCC) rejected all of the interim requests made by victims during the curfews.

Meanwhile, laws adopted after March 2015 further strengthened the impunity of the regime shielding security forces. Moreover, instead of holding accountable security officers who had engaged in gross violations before it came to power, the AKP government effectively owned the legacy of state violence. For example, a military officer named Musa Çitil, who had been implicated in two separate ECHR judgments concerning rape and torture of detainees in the gendarmerie station under his command in the Kurdish region in the early 1990s, was repeatedly promoted to higher-ranking positions. Çitil was promoted to one of the highest military posts in the Kurdish region in September 2015 and subsequently to a position in the general command of the Turkish Gendarmerie in July 2017.

State violence goes nationwide

Turkey’s recent track record on torture and other gross violations displays both continuity as well as change. The coup attempt in July 2016 resulted in the expansion of torture to a national scale, this time targeting individuals accused of being linked to Fethullah Gülen, whom Recep Tayyip Erdoğan declared to be the culprit behind the failed putsch. In January 2018, Amnesty International reported that many of the more than 10,000 individuals detained after the coup attempt had been subject to torture, including rape, in official and unofficial detention centers. In its 2017 and 2019 reports, the CPT, which in 2006 had found Turkey’s legal framework to be “capable of combatting effectively torture and other forms of ill treatment,” drew attention to a “considerable” increase in allegations of ill treatment and torture in Turkey, whose “frequency … remain[ed] at a worrying level.”

A striking aspect of the AKP government’s post-coup crackdown against alleged Gülenists has been its resort to enforced disappearances — hitherto known as a state practice targeting Kurdish dissidents and civilians in the 1990s. According to Human Rights Watch, around two dozen alleged Gülenists were disappeared, six of whom resurfaced in police custody months later, with several subsequently testifying in court that they had been subject to torture. Another aspect of the AKP’s post-coup crackdown is the introduction of renditions into the repertoire of legal repression. The government transnationalized its legal repression through a “heavy reliance on renditions” from abroad in pursuit of individuals alleged to have been involved in the failed coup. According to Freedom House, the AKP government said that it had “returned” 116 people from 27 countries. Freedom House itself catalogued 58 renditions from 17 different countries across the globe during 2014-21. While alleged Gülenists have been the main target, leftist and Kurdish dissidents were also subject to renditions. Turkey’s extra-territorial pursuit of dissidents has also implicated the global security architecture when Erdoğan blocked Sweden’s NATO accession over its refusal to extradite dozens of individuals allegedly affiliated with the PKK and the Gülen movement.

Nearly seven years after the coup attempt and two years after the end of the state of emergency that was subsequently declared, torture and ill treatment against vulnerable groups, legal repression of human rights defenders, and the impunity of officials engaged in gross violations all continue. Human rights defenders who speak up against state violence remain subject to judicial harassment through the abuse of counter-terrorism legislation. The latest target was Turkey’s leading anti-torture expert and head of the Turkish Medical Association, Şebnem Korur Fincancı, who in January 2023 was sentenced to nearly three years’ imprisonment for calling for investigations into the alleged use of chemical weapons against PKK militants by the Turkish military. In addition to the “usual suspects,” such as Kurdish civilians, new groups like migrants and asylum seekers are also subject to torture and ill treatment. In September 2022, the U.N. Sub-Committee on the Prevention of Torture raised concerns about the treatment of migrants and asylum seekers in removal centers, while the following month Human Rights Watch documented the violent deportation of Syrian refugees to Syria despite the serious risk of torture or threat to their lives. Impunity, too, prevails. In April 2023, the TCC dismissed as inadmissible five separate cases over right to life and other serious human rights violations by security forces during the aforementioned curfews in the Kurdish region. At the same time, since 2022, the TCC has also issued favorable judgments finding violations of the right to life and the prohibition of ill treatment in law enforcement’s resort to the use of disproportionate and deadly force during public demonstrations, social unrest, and arrests.

Conclusion

Turkey is a test case of the limits of international human rights law in an authoritarian context. The country is party to all major U.N. and CoE international human rights treaties, including those prohibiting torture and ill treatment, and is subject to the ECHR’s jurisdiction. Its constitution and laws ban torture and contain procedural safeguards against it — though they do not ensure the full accountability of security forces violating these bans. Yet torture and the impunity of its perpetrators remain state practice, at times reaching systemic levels, despite numerous ECHR judgments and reports by U.N. and CoE non-treaty bodies. While the TCC has issued several positive judgments in the past two years concerning the use of disproportionate and deadly force by law enforcement, it is not possible to speak of a uniform change of judicial practice on impunity in light of its decisions regarding the inadmissibility of the curfew cases. The limited progress made in the field of human rights was largely the result of the AKP’s EU agenda and was withdrawn as soon as the prospects of accession diminished from the mid-2000s onwards. In other words, the international naming and shaming of the Turkish government reached its limits. What is left is a vibrant and dedicated but small and vulnerable domestic human rights community, which continues to fight despite an increasing government crackdown and diminishing international solidarity.

Dilek Kurban, PhD, JD, is a post-doctoral researcher at the University of Copenhagen.

Photo by OZAN KOSE/AFP via Getty Images