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The Spectre of Trexit: Proposal to Reintroduce the Death Penalty in Turkey

Published on October 10, 2018        Author: 
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On 1 October 2018, just ten days before the European and World Day against the Death Penalty, the only elected member of parliament of the BBP – a Turkish ultra nationalist party – submitted a draft legislation proposal to Parliament asking for the reintroduction of the death penalty in Turkey. The proposal reintroduces the death penalty for the murder of children and women through sexual means and for killings carried out as part of individual or organised acts of terrorism.

In its justification for the proposal, Burhan Ekinci, the MP in question, highlights the need to restore justice for victims of these hideous crimes, and the need to enhance the trust of the Turkish public in the fairness of the Turkish criminal justice system.  In his proposal, Ekinci argues there is no death penalty in Turkey because of ‘international agreements’ (in quotation marks) and what he labels ‘domestic dynamics’. Ekinci also expresses his disgust for the dishonesty of so-called humanism which, he claims, puts the rights of perpetrators above those of the victims of the most serious crimes. 

This proposal, of course, may not find support in the Turkish Parliament and fade away. Evidence, however, shows that the proposal should not be taken lightly. If it does succeed, it can be Turkey’s Trexit, ending Turkey’s long standing relationship with European institutions.

Read the rest of this entry…

 

Part 2: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 21, 2018        Author:  and
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CAT’s Defiance in Response to State Pushback

In Part I of our analysis of the new CAT General Comment, we noted that state pushback on a range of issues, for example diplomatic assurances and post deportation redress, was successful as evidenced by the committee’s amendments to the now adopted GC.  In this post, we discuss the areas where the CAT stood its ground in the consultation process and resisted state pushback, on some occasions even pushing certain doctrines beyond the position stated in the draft GC, despite states’ concerns.

Reverse Burden of Proof

The draft GC proposed a reverse burden of proof in cases where an individual “cannot elaborate on his/her case”. This would be, for example, if she has no possibility to obtain documentation regarding her alleged torture or is deprived of her liberty (para 40). There was pushback against the reverse burden of proof from several countries with the US, Russia, Norway, Finland, Denmark, and Australia all arguing that this was not reflective of the wording of the Convention or the Committee’s caselaw, which suggests that the burden is always on the complainant to present their case.  While a reverse burden of proof is occasionally mentioned in the committee’s caselaw, this only ever shifts after the complainant has provided enough evidence to substantiate their case (see e.g. SPA v Canada, at para 7.5).  Despite this pushback, and the lack of grounding in the Committee’s caselaw, a reverse burden of proof has been retained in the adopted GC demonstrating the Committee’s use of the GC to engage in dynamic interpretation of the Convention.

Internal Flight Alternative Read the rest of this entry…

 
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Part 1: A few steps forward, a few steps sideways and a few steps backwards: The CAT’s revised and updated GC on Non-Refoulement

Published on March 20, 2018        Author:  and
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On 6 December 2017, after a year long consultation process with states and civil society representatives, the Committee against Torture (CAT) adopted its revised General Comment (GC) (now No.4) on the implementation of Article 3 of the Convention against Torture (the Convention)  in the context of Article 22.

In a decaying global human rights climate, in particular towards people on the move, this GC has been much awaited.  Non-refoulement claims are the single most common claims raised before all UN Treaty bodies.  Non-refoulement cases are over 80 percent of  CAT’s  caseload. In addition to this, the  Human Rights Committee (HRC), the Committee on the Elimination of Discrimination against Women (CEDAW) and the Committee on the Rights of the Child (CRC) also receive individual petitions concerning non-refoulement, and turn to CAT for guidance.

Twenty-three state parties to the CAT (out of 162 in total) provided written comments on the draft GC prior to its adoption. These, in almost every case, pushed back on the standards the Committee aimed to develop.  The significant majority of the twenty three States responding were asylum and migration destination states in the global north, well known for their anti migration rhetoric. Alongside these, countries that have a disproportionate burden of asylum seekers, such as Turkey and Morocco also responded. China, the US, the UK, Qatar and Egypt, even though they do not recognise the right to individual petition before CAT,  also provided written comments. The states that provided the most detailed and expansive submissions were: the United Kingdom, Norway, Denmark, Australia, Canada, the United States, the Russian Federation, France and Switzerland.

Over these two blog posts, we identify which issues were subject to state pushback and how CAT responded, highlighting the areas where CAT stood its ground and where it conceded. Read the rest of this entry…

 
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In memoriam: Professor Sir Nigel Rodley

Published on February 2, 2017        Author: 
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There are international lawyers who make outstanding contributions to their fields. And there are international lawyers who actually create the fields we study and insert life into them.

Professor Sir Nigel Rodley was both.

Nigel’s scholarly interests long focused on the place of human rights in international law and the development of human rights law within international law.

nigel_rodley_landscapeHis early work on international law was at the intersection of the law on the use of force and human rights. His 1973 American Journal of International Law article, co-authored with Tom Franck, ‘After Bangladesh: The Law of Humanitarian Intervention by Military Force remains the authoritative piece on the legality of unilateral humanitarian intervention under international law. His 1979 piece ‘Enhancing Global Human Rights’ in Foreign Affairs, co-authored with Louis Henkin, Richard Falk and Jorge Dominguez, asked how global human rights could be enhanced against the background of UN human rights treaties coming into force.

Nigel’s contribution to human rights in international law continued throughout his career. By the end of the 1980s, Nigel focused on the role of the International Court of Justice in advancing human rights in international law. His 1992 edited book To Loose the Bands of Wickedness: International Intervention In Defence of Human Rights – the astute and witty title as always a hallmark of Nigel’s writing – was one of the first to spot the then unexpected sea change in the involvement of the Security Council in humanitarian interventions. In 2007, revisiting humanitarian intervention in the aftermath of Kosovo in an article we co-authored, Nigel perceptively outlined the methodological challenges of international law in legalizing humanitarian intervention.

It goes without saying that general international law and how human rights figure in it would have benefited from more contributions from Nigel. His calling, however, was elsewhere. Read the rest of this entry…

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Tears in Our Eyes: Third State Obligations in International Law

Published on July 30, 2015        Author: 
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In early January 2015 the Republic of South Korea sold 1.9 million tear gas canisters to Turkey. With this sale came much campaigning against it. Amnesty International’s “Korea, do not sell us tear gas” campaign received over 50,000 signatures of support. The goal of this campaign was to highlight how the Turkish police force has been and continues to be to this day reckless and excessive in its use of tear gas on certain domestic demonstrations. Reckless and excessive use which, according to data collected by the Turkey Human Rights Joint Platform, led to the death of 19 Turkish citizens between 2006 and 2013 — including four children.

The sale of such large quantities of tear gas to a country that has a proven track record of using it frequently and recklessly raises important questions of international law. It raises questions in particular with regard to the responsibility of third states for internationally wrongful acts and the standard of proof required to establish such responsibility. Put simply, did South Korea commit an internationally wrongful act when it sold tear gas to Turkey?

Tear gas and international law

The name tear gas encompasses a group of substances that irritate mucous membranes and cause stinging sensations and tears. The effect of tear gas is normally considered temporary for a healthy adult so long as they are able to breathe fresh air shortly after exposure. Fatalities have been caused when tear gas has been used in closed spaces, on unhealthy adults or the elderly, or when canisters have been fired directly at protesters.

The use of tear gas is prohibited in wartime both by the 1925 Gas Protocol and the 1993 Chemical Weapons Convention.  The 1993 Convention, however, explicitly includes a clause in Article 1(5), inserted at the insistence of the United States, stating that “Each State Party undertakes not to use riot control agents as a method of warfare.” Article II(7) of the 1993 Convention further defines a “Riot Control Agent” as “Any chemical not listed in a Schedule, which can produce rapidly in humans sensory irritation or disabling physical effects which disappear within a short time following termination of exposure.” This clause, by implication, signals a regime of permissibility for riot control agents — including tear gas — during peacetime. Read the rest of this entry…

 

Third Time Lucky? The Dynamics of the Internationalisation of Domestic Courts, the Turkish Constitutional Court and Women’s Right to Identity in International Law

Published on January 29, 2014        Author: 
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On 19 December 2013 the Turkish Constitutional Court delivered what some local journalists are calling a ‘revolutionary’ judgment. The revolutionary judgment in question recognised that women indeed have the right to retain, if they so wish, their last name when they get married. Of course, in the grand scheme of women’s rights, this is far from ‘revolutionary’. It is also not trivial.  A woman’s right to choose her name is the tip of the iceberg in her struggle to stand as an equal in family relationships. What it does is challenge the deep and entrenched patriarchal stereotype of the family as a unit joined under a single name – the man’s. It also emphasises the importance of name for women’s self-development – whether married or single.

The substantive advancement of women’s rights by this decision aside, the judgment also tells us a tale of the reception of international law by domestic courts. In particular, it offers us clues for comparatively studying how high courts negotiate the tension between progressive international legal commitments and, frankly, backward domestic laws tacitly backed up by the domestic legislature and executive.  This is the third time (yes, indeed) that Turkey’s Constitutional Court dealt with this case – each time with identical facts (a woman asking to keep her name upon marriage) – and the second time it has done so since the European Court of Human Rights delivered a violation judgment against Turkey on the very same issue.  In the first two instances, in 1998 and 2011, the Turkish Constitutional Court decided that the Civil Code which requires a woman to change her name upon marriage was not unconstitutional. In the third case, it did find it unconstitutional.

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Filed under: EJIL Analysis, Human Rights
 

Syrian and Turkish Military Activities and International Law

Published on October 11, 2012        Author: 
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Dr. Başak Çali, Senior Lecturer in Human Rights and International Law, Department of Political Science, University College London

A shell fired from Syria into the back garden of 38 year old Zeliha Timuçin, in the  town of Akçakale, Turkey on 3 October 2012 killed her, her 3 children and her sister in law. The Turkish military retaliated by firing artillery salvos against Syrian targets over 3 days. This raises important, but, thus far, largely unaddressed, legal questions about what international law is applicable to both the shelling by Syria, and, crucially, Turkey’s response. The identification of applicable international law, in turn, has important consequences for the attribution of responsibility for the killing of these five civilians.

The line taken by the Turkish government immediately after its retaliatory attacks on Syria on 3 October 2012 was that its actions were ‘in accordance with international law and the rules of engagement of the Turkish Armed forces’. No clarification about what body of international law was forthcoming. Given that Turkey used military force, it could only be referring to the right to self-defence under Article 51 of the UN Charter and customary international law. Taking it further, and assuming there was an armed conflict between Turkey and Syria within the sense of Common Article 2 of the 1949 Geneva Conventions, principles of proportionality and military necessity with regard to targeting decisions under international humanitarian law would also apply.  The reference to these two bodies of law assumes that events have indeed triggered their applicability. In reality, this is far from clear.

Has there been an armed attack against Turkey within the framework of Article 51 of the UN Charter?

The reaction of the NATO at its emergency session in Brussels on 3 October 2012  qualified the shelling as an “aggressive act against an ally” – thus supporting the view that Turkey was acting in self-defense under the ius ad bellum. Read the rest of this entry…