The Trilateral Agreement between Turkey, Finland and Sweden and the Silence of Human Rights: The Need to Apply the MoU in Light of Human Rights and Refugee Law Protections  

On 28 June, 2022, leaders of Turkey, Finland and Sweden met in Madrid to agree on a trilateral agreement that paves the way for Finland and Sweden’s NATO membership. The Memorandum of Understanding (MoU) that resulted from the meeting contains concrete commitments by Finland and Sweden to cooperate with Turkey in the fields of counter-terrorism, organised crime and threats to national security. The commitments, as outlined in the MoU, include adopting new national regulatory frameworks for arms exports, supporting Turkey’s involvement in the initiatives of the European Union’s Common Security and Defence Policy, including the PESCO Project on Military Mobility, fighting ‘disinformation’, and judicial cooperation in matters of counter-terrorism, in particular regarding groups or individuals affiliated to the outlawed Kurdistan Workers’ Party or Partiya Karkerên Kurdistan (PKK). This post will focus on this last point, and will highlight some critical aspects of the MoU where it fails to make any reference to human rights and refugee law safeguards when considering deportation or extradition requests.

Vague provisions on anti-terror cooperation

The Kurdish question is one of the most intricate and long-lasting issue in the Middle East. While early historical records of the presence of Kurds in the area date back to the times of Alexander the Great, the region of Kurdistan never achieved the statehood in modern terms, and the hopes for self-determination and the creation of a Kurd state fuelled by the 1920 Treaty of Sèvres were definitively repressed in 1923 with the Treaty of Lausanne. Since then, the history of Kurds has been inextricably intertwined to that of Syria, Turkey, Iran and Iraq. In Turkey, the independence movement in the oil-rich Kurdish region was met with repression and segregation by the central government. In turn, the militant separatist organization PKK started a bloody guerrilla-war that to some extent lasts until today. Nowadays, the PKK is widely recognised as a terrorist organization by NATO members and the European Union.

To the contrary, the Fethullah Terrorist Organisation (FETÖ) and the People’s Protection Units or Yekîneyên Parastina Gel (YPG) are not generally considered terrorist groups. FETÖ is the Turkish denomination of the Gülen movement, led by the US-based preacher Fethullah Gülen. The YPG is a mainly-Kurdish armed group in Syria and the primary component of the Syrian Democratic Forces fighting ISIS in Syria and, until now, supposedly supported by Sweden. Several NATO members have explicitly rejected Turkey’s request to list FETÖ and YPG among terrorist organisations. States have also not regarded the Democratic Union Party or Partiya Yekîtiya Demokrat (PYD), a Kurdish left wing political party in Syria, as a terrorist organisation. Turkey recently started to depict PYD as a terrorist group in Turkish official discourse, after the party accused the government of facilitating ISIS during the Siege of Kobane. As a result, Turkey also launched the so-called Operation Olive Branch in January 2018, a military attack in the Kurdish-populated region of Afrin in Syria, justifying their illegal action on self-defence against the “threat of terrorism”.

Point No. 4 of the MoU 4 states that Finland and Sweden, in full support to Turkey against threats to its national security, “will not provide support to YPG/PYD, and the organisation described as FETO in Turkiye.” The same point goes on by stating that “Finland and Sweden reject and condemn terrorism in all its forms and manifestations, in the strongest terms. Finland and Sweden unambiguously condemn all terrorist organisations perpetrating attacks against Turkiye…” By this formulation, Finland and Sweden seem to imply that FETÖ, YPG and even PYD should be considered terrorist organisations. By conceding to this opaque and allusive language, Finland and Sweden – without explicitly committing to classify FETÖ, YPG and PYD as terrorist – offer further leverage to Turkey’s heavily politicised version, and to shifting narratives around Kurds in their domestic public opinion.

The next point of the MoU further offers another example of diplomatic opacity. Point 5 states that Finland and Sweden “commit to prevent activities of the PKK and all other terrorist organisations and their extensions, as well as activities by individuals in affiliated and inspired groups or networks linked to these terrorist organisations.” What is more, under bullet point 4 of point 8 of the MoU, Finland and Sweden promise to “investigate and interdict any financing and recruitment activities of the PKK and all other terrorist organisations and their extensions, as well affiliates or inspired groups or networks as outlined in paragraph 5.” These clauses are vague and broad, and could be easily interpreted as to include people who are only indirectly linked to ‘PKK-inspired’ networks. This phrasing can be used to curtail support for legitimate political associations that are not related to any terrorist or violent activity. Finland and Sweden should make sure this commitment is only enforced with respect to individuals and groups that are effectively affiliated with proscribed terrorist organisations, and should ensure that such measures respect the principles of legality and non-retroactivity.

Extradition and the need to apply the principle of non-refoulement

The most problematic provision of the MoU is the third bullet point of point 8, which sets out the grounds for judicial cooperation with regard to pending deportation or extradition requests of terror suspects. These will be considered “expeditiously and thoroughly” by the Nordic countries, which will “tak[e] into account information, evidence and intelligence provided by Turkiye, and establish necessary bilateral legal frameworks to facilitate extradition and security cooperation with Turkiye, in accordance with the European Convention on Extradition.” The silence of this provision on human rights and refugee law protection is particularly concerning.

It is first worth reiterating that most cases potentially falling within the loose terminology of the MoU are highly political in nature. As per Article 3 of the European Convention on Extradition, extradition shall not be granted for political offences (c. 1) or when “a request for extradition for an ordinary criminal offence has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons” (c. 2). Since precedents are not lacking to put into question the potential fairness and impartiality of criminal proceedings against Kurds in Turkey, Finland and Sweden should carefully evaluate the opportunity to exercise their aut dedere aut iudicare power before agreeing to extradition requests in cases of alleged Kurdish terrorists. Moreover, in applying the principle of double criminality, they should carefully consider whether the case should be assessed as a political offence, for which extradition is precluded, rather than a terrorist one.

Secondly, Kurds in Sweden and Finland – including genuine terrorist suspects – should be granted minimum human rights protections, that are instead overlooked in the MoU. This failure to mention international and regional human rights obligations is a major shortcoming of the agreement. The Nordic countries, and Sweden in particular, are home of a huge Kurdish diaspora coming from both Turkey and other countries with a significant Kurdish population, that are not part of the Council of Europe. Many are political refugees or asylum seekers, including some whose extradition has already been requested by Turkey. According to the principle of non-refoulement (Article 33 of the Refugees Convention), refugees cannot be expelled or returned to territories where their life or freedom would be threatened on account of race, religion, nationality, membership of a particular social group or political opinion. Those who have already been recognised the status of refugees or other forms of international protection must be considered as automatically excluded from deportation, as it is assumed that the hosting state has already established the genuine presence of a well-founded fear of persecution (Article 1.A.2), and the absence of barring causes such as the commission of international crimes or other serious non-political crimes (Article 1.F a and b). As per applicable refugee law, asylum seekers whose request is still pending (and even those whose request has not been filed yet) should be granted the same protection, and any extradition should be suspended at least until the end of a due asylum procedure. The process of verification of the entitlement to international protection should be given priority and prevalence over extradition requests.

At the same time, the European Convention of Human Rights (ECHR) regime offers even wider protections. As the European Court of Human Rights (ECtHR) clarified (inter alia, Hirsi Jamaa and others v. Italy, FG v. Sweden, Saadi v. Italy, and MK & others v. Poland), the expulsion of aliens is governed by the standards of Articles 2 (right to life) and 3 (prohibition of torture and inhuman, cruel and degrading treatment) of the ECHR. Even non-refugees are protected against deportation to an unsafe country, which is intended more broadly than the Refugee Convention’s remit. Therefore, states face responsibility for deporting individuals to countries where there are substantial grounds to believe that the person in question would face a real risk of being subjected to treatment contrary to Article 3. The presumption of the safety of a country is rebuttable and non-absolute (M.S.S. v. Belgium and Greece), and the safeguards ex Article 3 ECHR also apply to intra-Council of Europe removals (Tarakhel v. Switzerland).

In addition, while the Refugee Convention allows for the refoulement of asylum seekers who committed serious crimes, the ECHR prevents the expulsion of aliens to a country where a real risk of ill-treatment exists even on grounds of national security (Soering v. United Kingdom) or the person’s alleged involvement in terrorist activities (Chahal v. United Kingdom).

Therefore, when considering extradition requests, Swedish and Finnish courts will need to respect human rights duties and the standards set by the ECtHR. The failure to mention them in the MoU does not exclude the legally binding value of human rights obligations, especially peremptory norms such as the prohibition of torture and refoulement. 

Fight against disinformation and terrorist propaganda

Finland and Sweden committed to “fight disinformation, and prevent their domestic laws from being abused for the benefit or promotion of terrorist organisations, including through activities that incite violence against Turkiye.” This vague formulation leaves the definition of what does and what does not constitute ‘abuse’ of domestic laws and ‘disinformation’ open for interpretation, especially in the context of such a long-lasting, highly politicised matter. It is clear that the legitimate fight against terrorism extends to promotion and incitement; what is less clear is, however, how narrowly the concept ‘incitement of violence’ will be construed.

Turkey, on its part, has a history of labelling legitimate free speech as ‘incitement to violence’ and ‘terrorist propaganda’, especially when it comes to the Kurdish question. As an example inter multis, in Erdoğdu v. Turkey the ECtHR was called to decide on the case of a journalist convicted under the Prevention of Terrorism Act 1991 for the publication of an interview containing the views on the Kurdish question of a sociologist. The government held that the interview contravened the prohibition of separatist propaganda under the 1991 Act and posed a threat to territorial integrity, public order and national security. The Court found that the text did not contain any passages which could be described as an incitement to violence, neither it did include any separatist propaganda or express support for any illegal organisation. The Court then concluded that there had been an interference with the journalist’s right to freedom of expression under Article 10 ECHR.

More generally, Turkey is deemed to weaponize its anti-terror legislation to repress dissident voices and Kurdish political opponents, and criminalise the peaceful exercise of freedom of expression. Finland and Sweden should make sure that their approach to ‘disinformation’, counter-terrorism and ‘incitement to violence’ is in line with Conventional standards on free speech. It is also worth recalling that restrictions to freedom of expression under Article 10.2 of the ECHR should be construed particularly narrowly when it comes to political speech or public interest debates (Wingrove v. United Kingdom).

As it stands, the clause in the MoU seems to suggest a serious risk of undue restrictions on freedom of expression, whereas Finland and Sweden seem open to potentially change their criminal legislative framework to make sure their understanding of free speech aligns with Turkey’s dominant narrative on the Kurdish question. Before such a step is taken, it would be necessary for Finland and Sweden to investigate whether the criminal provisions already in place in the countries would be per se sufficient to tackle incitement to violence, terrorist activities and threats to the national security of Turkey, and other allies.

Conclusion

This post showed that there are significant human rights concerns deriving from the MoU and, most notably, its omissions. The text lacks clarity and the potential implications under the profiles of criminal law and judicial cooperation are not foreseeable; in addition, it fails to mention minimum human rights standards, proportionality test and balance of interests.

Notwithstanding this failure, Finland and Sweden will continue to be bound by their human rights commitments. However, despite their binding character, human rights obligations often suffer from poor implementation and lack of enforcement. The omission of a human rights clause in the MoU waters down the expectation that measures and deportations falling short of human rights standards will not be implemented, and is thus a gross shortcoming of the agreement.

The 2017 Italian-Libyan MoU is a chilling example of why this is critical and can have fatal consequences. The 2017 MoU was signed to reinforce border security and fight illegal immigration and human trafficking, and is now the basis for the call on the Office of the Prosecutor of the International Criminal Court to investigate Italy for war crimes and crimes against humanity, for its alleged complicity in torture and other gross violations of human rights resulting from illegal pushbacks and support to Libyan authorities. The 2017 MoU contained a human rights clause (Article 5), where the parties committed “to interpret and apply the present Memorandum in respect of the international obligations and the human rights agreements to which the two Countries are parties.” It is therefore even more concerning that this new MoU between Turkey, Finland and Sweden is completely silent on this respect.

While respect for international and regional human rights instruments, to which all three countries are part, may be considered as implicitly embedded in their diplomatic and legal commitments, the seriousness of the potential harms deriving from this shortcoming does not allow for such a naive approach. Most likely, the omission was deliberate, and the MoU’s vague and open language was carefully crafted to allow the achievement of a political agreement, without neither over nor under-promising about cooperation and renditions. In other words, human rights obligations were omitted to make it more politically appealing for Turkey to sign the MoU, but Swedish and Finnish courts will still be obliged to respect them. Yet this dangerous game only serves anti-Kurd narratives, and fails to send a clear message that human rights will be prioritised over political and military agendas.