Possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes – I
Friday, November 03, 2006
By Karim Salih
A critical analysis of the possibilities of prosecuting Turkish leaders for crimes against humanity and war crimes since the military coup in 1980 – Part I
“I have the conviction that as long as a nation does the best for its own interests, and succeeds, the world admires it and thinks it moral.”  - Talaat Pasha, the architect of the Armenian destruction (1915-1922), in 1915
The 1980 military coup has been considered by many Turkish academics and human rights groups a turning point in the Turkish history in terms of both the scale and the extent of brutality of human rights abuses. The atrocities perpetrated against Kurdish civilians, according to Turkish and international human rights defenders, have increased since 1984 under the guise of legitimacy of addressing security concerns.
I intend to explore and catalogue a possible international case against Turkish political and military leaders for injuries inflicted on the Kurdish civilians in Turkey since the 1980 coup. I will discus the criticisms of partiality and prejudice that arise with arbitrary decisions to prosecute crimes against international law committed in some internal armed conflicts but not others of arguably equal brutality. I will contend that bringing into justice those suspected of international crimes and establishment of a realistic picture, based on the historical facts of past deeds are critical preconditions for achieving an everlasting and just peace, and the development of democratic society that could advance the cause of democracy and human rights not only in Turkey but in the whole of West Asia.
Why this paper?
On November 9, 2005, the suspected bombers of a bookstore in Semdinli in Turkey’s Kurdish southeast were apprehended on the scene by the surviving victims and their arms and identity cards that belonged to Turkish security forces were published by Kurdish activists on the internet on the same day. Unlike previous similar bombings against institutions and individuals who asserted their Kurdish identity, this incident attracted domestic and international attention and deepened the controversy of who wields the real power in Turkey.
When Turkish authorities in April 2006, in a bid to defuse the tension between the government and the Turkish Armed Forces (TSK), released the suspected bombers and dismissed the prosecutor who prosecuted them, former President Suleyman Demirel stated that Turkey had not changed very much since the 1980 coup, explaining that “There is the state and there is the deep state … When a small difficulty occurs, the civilian state steps back and the deep state becomes the generator (of decisions).”
Until Turkey succeeds in reining in the military and eliminating torture, the Kurdish population and the other Anatolian minorities seems are destined to encounter more of the Turkish deep state institutions than the legitimate state.
I believe that opening up debate over the criminal liability under international law for forced disappearances, torture and extra judicial killings, though understandably taboo in Turkey (for a society structured along authoritarian lines, such a debate raises fears of potentially destabilizing consequences), it may help the cause of democracy and human rights that so far countless of Anatolians have lost their lives on its course.
In contrast to the 1974 Greek transition from seven year military dictatorship to democracy which accompanied criminal prosecutions of the junta leaders for torture and other crimes,  in Turkey the leaders of the 12 September 1980 not only remained unprosecuted after three years of direct military rule, but retained influence over the political administration through the National Security Council (Milli Güvenlik Kurulu – MGK) which they had entrenched in the 1982 Constitution of the Republic of Turkey.  Twenty six years on and the unresolved legacy of the coup is increasingly reported to provoke vile crimes  amid accusations, from impartial bodies, of military disrespecting the legal order. 
This paper will attempt to reach prima facie conclusions on criminal liability in international law for alleged wrongs committed since 1980 in Turkey as well as to assess the available prosecutorial options and the possibilities of enforcement.
Following presenting a brief historical overview of the modern republic of Turkey, ideas and practices of Kemalism, Turkey’s official ideology since 1923, will be examined with some focus on international indifference toward the plight of Armenians until 1923 and the Kurds thereafter as well as a particular interest in military’s role in the politics leading up to the 1980 coup. Starting with a brief presentation of human rights record during the three years following the 1980 coup, Part II will review the evidence documented by independent bodies regarding destruction of villages and forced displacement, torture, and extra-judicial executions and forced disappearances respectively emphasising in particular on the alleged involvement of state. This will be followed by a brief appraisal of Turkey’s international obligations.
Part III will examine the relevant rules of international law on crimes against humanity following an assessment of the conceptual evolution of these crimes and the early failings. Next, the concept of war crimes in internal armed conflicts will be discussed. The status of crime of torture as a discrete crime under international law will be analysed. Part IV will attempt to apply the relevant provisions of law to a selection of the available evidence in relation to crimes against humanity, war crimes and torture respectively. The requirement of the legality principle will be thoroughly analysed, employing the ICTY and ICTR jurisprudence as well as judgments by national courts when appropriate. Part V will explore the possible venues for accountability, evaluating the advantages and disadvantages of each option of a special court in Turkey, the ICC and an ad hoc international criminal tribunal respectively. Finally, Part V will attempt to critically analyse the possibilities of enforcing international criminal law especially in the case of a NATO ally like Turkey. This paper will expound a view that pursuing criminal accountability for serious violations of international law, though not a panacea, is morally and legally imperative and would contribute to international peace and security in the long run. It will be contended that biased selective enforcement of international criminal law on arbitrary basis questions the generality of the law which is a prerequisite to its legitimacy.
I. The creation of the Republic of Turkey
After the defeat of the Ottoman Empire in the World War I, the Peace Treaty of Sèvres was signed in August 1920 which provided for the dismantling of the Empire and the formation of Armenian  and Kurdish states along a Turkish republic.  The modern “Turkey”, led by Mustafa Kemal (surnamed Atatürk “Father of the Turks” in 1934),  “smashed its way”  out of Sèvres and into modern nation-statehood in 1923 in Anatolia  where Greeks, Armenians, Kurds and Assyrians had coexisted for millennia. 
On the way to nationhood, the Turkish nationalists Committee of Union and Progress (CUP), who ruled from 1913 to the collapse of Empire in 1918, engaged in the destruction of the Armenians in 1915-17 that resulted in the death of up to one and half million Armenians, almost half of the population.  After the war was ended, the British High Commissioner, in January 1919, informed the Turkish Foreign Minister that Great Britain is “resolved to have proper punishment inflicted on those responsible for the Armenian massacres”.  Ottoman court-martials, in deed, tried a number of persons and found, in absentia, some Young Turk leaders including Talaat Pasha guilty of “the organization and execution of the crime of massacre” against the Armenian population under Articles 45 and 170 of the Ottoman Penal Code. 
Rejecting capitulation of the Ottoman sultan to the Great Britain, Mustafa Kemal established a counter-government in Ankara in April 1919 and a parliament, named “Grand National Assembly of Turkey Türkiye Büyük Millet Meclisi – TBMM” in April 1920.  Following the withdrawal of French troops from Cilicia in May 1922,  the Greek forces were repelled and the city of Smyrna (present-day Izmir) in September 1922 was captured by Kemal troops.  According to some accounts, 200.000 of its indigenous Greek population and Armenian “refugees” were massacred and the city was later set alight.  After his military triumph, Kemal was able to influence the provisions of the Treaty of Lausanne (24 July 1923)  which replaced the Sèvres Treaty.  The new Treaty not only made no reference to autonomous Armenia or Kurdistan but contained a ‘Declaration of Amnesty’ for all offences committed between 1 August 1914 and 20 November 1922.  The CUP members, including those convicted for the mass killing of Armenians by the Istanbul authorities in 1918-1920, had already been granted a general amnesty by the Ankara government of Mustafa Kemal on 31 March 1923.  Many of the CUP members became ardent Kemalists and some served as ministers in the modern Republic of Turkey which was officially proclaimed on 29 October 1923. 
Kemalism: changing society in short order
The ideology of Kemalism has been enshrined in 1982 Constitution as sacrosanct which cannot be amended;  even proposals to do so may constitute a criminal offence.  According to Randal, like Italian fascism, Kemalism was characterised by a pivotal feature of the urge to transform and modernise what they saw as a “corrupt society” through the power of the state to enforce, be it violently, “an exclusive racialism”.  To modernise the “corrupt” Ottoman society, Kemal imposed radical social, legal, and political reforms that included outlawing the traditional dress code, changing from Arabic to Latin script and adopting new civil and penal codes based on European models. 
Turkification, expressed by Kemal as “How happy I am to be a Turk”,  was imposed on the whole population, regardless of their ethnic roots, language, culture, and religious practices.  Even until early 1990s, school children were taught “Universal Turkish History” and its complement “Sun Language Theory”, according which, all peoples and world civilisations originated from the Turks, and Turkish language was the first spoken language in the development of mankind and is the source of all existing world languages. 
The Kurds in Anatolia, who at present account for over half of the Kurds worldwide and up to a quarter of Turkey’s population,  supported Kemal’s nationalist army in 1919-23 war on promises of “equality” and “a meaningful autonomy” in the new state.  As soon as the new borders of Turkey were secured in the Treaty of Lausanne, Kemal began to expel Kurdish members of the government and TBMM.  In March 1924, measures were issued proscribing Kurdish political, educational and cultural associations, and banning Kurdish language in a clear breach of Articles 38, 39 of the Treaty of Lausanne.  The wards “Kurd” and “Kurdistan” were banned as the Kurds came to be called “mountain Turks” and the Kurdish names of over 20,000 settlements were replaced with Turkish names. 
The Kemalist leaders tried little to hide the ultra nationalist drive behind the imposition of Turkification on the Anatolian ethnic communities. In 1925, the Turkish Prime Minister Ismet Pasha (surnamed “Inonu” in 1934)  , publicly stated “[w]e are openly nationalist… Besides the Turkish majority, none of the other elements shall have any impact. We shall, at any price, Turkicize those who live in our country, and destroy those who rise up against the Turks and Turkdom.”  The suppression of resistance to Turkification culminated in the Dersim massacre of 1937-38,  which according to Bruinessen, “undoubtedly, was massive, indiscriminate, and excessively brutal”.  According to eye-witness accounts many tribes of Dersim, including those who surrendered,  as well as the population of some villages and bigger settlements were annihilated.  These accounts have, according to Bruinessen, been confirmed by documents published by the War History Department, which give a detailed account of the military operations. 
Similar to Armenian massacres in 1915-22, this large scale mass-murder did not go unnoticed in the West.  However in both cases, much like the genocide of the Jews in 1939-45, the West did not raise a finger in support of the vulnerable groups. If one reason of western indifference to the atrocities perpetrated by the Turkish armed forces had been purely political, viz., Turkey was wanted to serve as a bulwark against Bolshevism; the other may have been what Leo Kuper called the “sovereign right to commit genocide” within the national borders.  It is not a surprise that the western states paid admiration and more attention to the secularist nature of the Kemalist regime rather than its domestic brutal practices.
Militarism and democracy
Twelve years after the death of the “Eternal Leader”,  Turkey held its first open elections which led to the victory of the opposition Democratic Party.  The Turkish army, which traditionally proclaims itself as “the protector of the State” and the “custodian of the Ataturk ideology”,  overthrew the elected government of Adnan Menderes in May 1960 and executed him along with two of his cabinet members in September.  The generals, driven by the statist ideology of Kemalism, brought down another elected government in 1971. 
In the mid 1970s, political violence between the left and right movements was on the rise. Much of the violence was carried out by “Grey Wolves” the armed wing of the “Nationalist Action Party (MHP)”, headed by Alparslan Turkes, a leader of the 1960 coup. Martial law was imposed on much of the South-east where the left, despite army support to MHP, was particularly strong. 
Justifying intervention on the basis of restoring order and ending “civil war”,  Turkish armed forces led by its commander, General Kenan Evren, deposed the elected government on 12 September 1980.  The army abrogated the constitution, closed down the parliament and all political parties, and imposed martial law throughout the country. 
1. Quoted in Dadrian, Vahakn N., The History of the Armenian Genocide: Ethnic Conflict from the Balkans to Anatolia to the Caucasus (Oxford: Oxford University Press, 1995), p. 383.
2. Kritz, Neil J., “Where We Are and How We Got Here: An Overview of Developments in the Search for Justice and Reconciliation”, in Alice H. Henkin (Ed.), The Legacy of Abuse: Confronting the Past and Facing the Future (Washington DC: Aspen Institute, 2002), pp. 21-46, at 24, 26. For an extensive analysis, see Roehrig, Terence, The Prosecution of Former Military Leaders in Newly Democratic Nations: The Cases of Argentina, Greece, and South Africa (Jefferson, North Carolina: McFarland and Co., 2002), pp. 1-29, 116-185.
3. The Constitution of the Republic of Turkey, available at the official website of the Turkish parliament, Article 118 (As amended on 17 October2001), , (last visited 30 August 2006).
4. Turkish Daily News, Editorial, “Kurdish impasse key factor in rising rate of lynchings”, TDN Ankara, 18 September 2006 (Turkish Daily News – TDN asserts that “politicians, some of Turkey’s most renowned academics, civil society representatives…” shared the assessment that the legacy of the 1980 coup “has much to do” with the rising scale of lynching and attempted lynching “directed either at people of Kurdish origin or those who have been outspoken in their defense of the Kurdish cause”).
5. Turkish Daily News, Editorial, “Kretschmer: Military does not respect legal order”, TDN Ankara, 23 September 2006 (the EU representative in Turkey, focusing on the “dominance of the Turkish military’s role in politics”, blamed the army ad security organs for “playing their own games, outside the control of the civilian authorities, disrespecting the legal and institutional order”).
6. The Treaty of Peace between the Allied and Associated Powers and Turkey (Signed at Sèvres August 10, 1920), Section VI, Articles 88-93, available at , (last visited 12 August 2006).
7. Ibid, Section 111, Articles 63-65.
8. The Surname Law, November 1934; see, Yildiz, K and G Fryer, The Kurds: Culture and Language Rights (London: KHRP, August 2004), pp. 16-7.
9. Levene, Mark “Creating a Modern ‘Zone of Genocide’: The Impact of Nation and State-Formation on Eastern Anatolia, 1878-1923”, Holocaust and Genocide Studies, Volume 12, No.3, 1998, pp 393-433, at 433; Levene, Mark, “Why Is the Twentieth Century the Century of Genocide”, Journal of World History, Vol. 11, No. 2, 2000, pp. 305-36, at 336.
10. “Anatolia” is roughly the Asian part of the modern Republic of Turkey, east of the Sea of Marmara, while the European part of modern Turkey is part of Eastern Thrace. See Library of Congress, Federal Research Division, “Country Profile: Turkey”, January 2006, , (last visited 08 August 2006). The word “Anatolia” will be used when necessary for its lack of ethnic connotation in lieu of “Turkey” in this paper,
11. McDowall, David, A Modern History of the Kurds (London and New York: I.B.Tauris, 1997).
12. Dadrian, 1995, p. 382.
13. The Foreign Office, 371/4174/118377 (folio 253), cited in Schabas, William, Genocide in International Law (Cambridge: Cambridge University Press, 2000), p. 21.
15. McDowall, David, The Kurds, a Nation Denied (London: Minority Rights Publications, 1992), p. 32.
17. Dadrian, 1995, p. 271.
18. Horton, George, The Blight of Asia (New York: The Bobbs-Merrill Company, 1926).
19. The Treaty of Peace with Turkey Signed at Lausanne, July 24, 1923, , (last visited 14 September 2006).
20. For an extensive analysis of the Western indifference towards the suffering Armenians and their cooperation with the nascent Kemalism, see generally, Bloxham, Donald, The Great Game of Genocide: Imperialism, Nationalism, and the Destruction of the Ottoman Armenians (New York: Oxford University Press, 2005).
21. Supra, note 19, Article 140.
22. Hofmann, Tessa, “Annihilation, Impunity, Denial: The Case Study of the Armenian Genocide in the Ottoman Empire (1915/16) and Genocide Research in Comparison”, University of Tokyo, 27 March 2004.
24. Article 2 of The Constitution of the Republic of Turkey, supra note 3, proclaims Turkey a “democratic, secular, and social state governed by the rule of law….loyal to the nationalism of Ataturk”.
25. Article 4, ibid, declares that Article 2 “cannot be amended nor can its amendment be put forward.”
26. Under the law to protect Ataturk (No. 5816 – 1951).
27. Randal, Johnathan, After Such Knowledge, What Forgiveness: My Encounters with Kurdistan (New York: Westview, 1999), p. 252.
28. McDowall, 1992, pp. 4-5.
29. Randal, 1999, p. 267, p. 258; Kendal, 1980, p. 67.
30. Randal, 1999, p. 267.
31. Kendal, 1980, p. 68, and the list of references; Gerger, Haluk, “Crisis in Turkey”, Middle East Research Associates (MERA), Occasional Paper No. 28, December 1997.
32. See, e.g., Michael Gunter, “Why Kurdish Statehood is Unlikely?” Middle East Policy Vol. XI No 1 Spring 2004. The CIA estimate of Kurdish percentage in Turkey is 20%; see United States Central Intelligence Agency, The World Factbook: Turkey, updated on 7 September, 2006, , (last visited 12 August 2006).
33. Olson, Robert, “Kurds and Turks: Two Documents concerning Kurdish Autonomy in 1922 and 1923”, Journal of South Asian and Middle Eastern Studies, Vol. 15, Winter 1991, pp. 20-31.
34. McDowall 1997, p. 198-200.
35. McDowall 1997, p. 200; for details see Yildiz and Fryer, 2004, p.23. See Articles 38, 39 of the Lausanne Treaty, supra note 19.
36. McDowall 1997, p. 200; As early as 2005, Turkey changed the scientific Latin names of certain animals to remove reference to “Kurdistan” and “Armenia”; see, BBC News, “Turkey renames ‘divisive’ animals”, 8 March 2005.
37. Ismet Inonu became the first Prime Minister of Turkey in November 1923 and, after the death of Kemal Ataturk, became President from November 1938 to May 1950. After the 1960 military coup he served again as Prime Minister in November 1961- February 1965.
38. Address to the Türk Ocaklari in Ankara, 21 April 1925. Quoted in Bruinessen, Martin van, “Genocide in Kurdistan? The Suppression of the Dersim Rebellion in Turkey (1937-38) and the chemical war against the Iraqi Kurds (1988)”, in George J. Andreopoulos (Ed.), Conceptual and Historical Dimensions of Genocide (University of Pennsylvania Press, 1994), pp. 141-170, 145, citing Güney Aslan, Üniformali kasaplar (Butchers in uniform), (Istanbul: Pencere Yayinlari, 1990).
39. Bruinessen, 1994.
41. Ibid; Kendal, [cf. Nezan], “Kurdistan in Turkey”, in Gérard Chaliand (Ed.), People without a Country: The Kurds and Kurdistan (London: Zed Books, 1980), pp. 47-106, p. 67; McDowall, 1997,p. 208; Dr. Sivan, Kürt millet hareketleri ve Irak’ta Kürdistan ihtilali [Kurdish national movements and the revolution of Kurdistan in Iraq], (Stockholm, 1975), quoted in Bruinessen, 1994: (“[w]omen and children of [the tribes who surrendered] were locked into hayshed and burnt alive”).
42. M. Nuri Dersimi, Kürdistan tarihinde Dersim [Dersim in the history of Kurdistan], (Aleppo, 1952). Quoted in Bruinessen, 1994: (“the inhabitants of Hozat town…men, women and children, were brought near the military camp outside Hozat and killed by machine gun”).
43. Bruinessen, 1994.
44. Report from the Pro-Consul in Trebizond to Sir Percy Loraine, ‘Memorandum on military operations in Dersim, 27 September 1938’ (Great Britain, Public Records Office, FO 371/21925, Document E5961/69/44), quoted in McDowall, 1997, p. 209; and Bruinessen, 1994 (in one paragraph the British report reads: “the military authorities have used methods similar to those used against the Armenians during the Great War: thousands of Kurds including women and children were slain, others, mostly children, were thrown into the Euphrates… It is now stated that the Kurdish question no longer exists in Turkey”).
45. Leo Kuper, “The Sovereign Territorial State: The Right to Genocide”, in R.P. Claude and B.H. Weston (Eds.), Human Rights in the World Community (Philadelphia: University of Pennsylvania Press, 1989), pp. 56-64.
46. Ataturk was referred to as “Ebedi Sef” meaning the Eternal Leader; see, Kendal, 1980, p. 71.
47. Ibid, p. 78.
48. On the role of military in Turkish politics, see, Rouleau, Eric, “Military with Political Power: Turkey’s Modern Pashas”, Le Monde Diplomatique, September 2000; Ozcan, Gencer, “The Military and the Making of Foreign Policy in Turkey”, in Kirisci, Kemal and Barry Rubin, (Eds.): Turkey in World Politics: An Emerging Multiregional Power, London: Lynne Rienner Publishers, 2001), pp. 16-20.
49. Kendal, 1980, p. 79.
50. Gerger, 1997
53. See the Preamble to 1982 Constitution, supra note 3, before it was amended in June 1995: “Following the operation carried out on 12 September 1980 by the Turkish Armed Forces in response to a call from the Turkish Nation, of which they form an inseparable part, at a time when the approach of a separatist, destructive and bloody civil war unprecedented in the Republican era threatened the integrity of the eternal Turkish Nation and motherland and the existence of the sacred Turkish State.”, the full online text is available at , (last visited 12 September 2006).
54. United Kingdom Home Office, “Country Report: Turkey”, Country Information and Policy Unit, October 2003, para. 4.1 [hereinafter UK HO 2003].