The Legality of the Extraterritorial Abductions by the Erdogan Regime under International Law

Recep Tayyip Erdogan, Prime Minister of Turkey address the United Nations. 24/Sep/2009. United Nations, New York. UN Photo/Eskinder Debebe. www.unmultimedia.org/photo/

Article by: Yasir Gökçe

The massive crackdown that the Erdogan regime has initiated particularly after the coup attempt in July 2016 resulted in heavy consequences for people who identify themselves as critical to the Erdogan regime, the best-known of whom are the followers of the Gülen Movement, a social and religious group led by self-exiled Turkish cleric Fethullah Gülen. (For an excellent analysis of the July 15 coup attempt, see here). The Erdogan regime holds him and his followers responsible for the failed coup while he denies any involvement whatsoever and calls for an international investigation into the matter (see here and here). The US has so far refused the Erdogan regime’s demands for Mr. Gülen’s extradition on the basis of the evidence being insufficient or irrelevant (see here).

One of the means Ankara has employed with a view to prosecuting the Gülen sympathizers in domestic courts is abductions. This piece aims to address the issue of whether extraterritorial abduction of Turkish individuals carried out by the Erdogan regime are legal under international law.

The highest-ranking Turkish officials’ public statements indicate that extraterritorial abductions appear to have become a pattern for Turkey in its extraterritorial application of criminal law. Since the failed coup, reports show that Ankara abducted or attempted to abduct Turkish citizens from at least 18 countries. Lastly, Turkey’s presidential spokesman, said during a press conference that the Turkish government would continue its global kidnapping operations for followers of the Gülen movement, adding that the operation could extend to the United States as well. He also stated that this sort of operations had been carried out under the “very clear instructions of Mr. President.” An attempted armed entry into Mr. Gülen’s compound in Pennsylvania, US took place on the heels of this statement.

First of all, it should be born in mind that the internationally accepted way of physically bringing a wanted individual within the jurisdiction of a state seeking the individual is extradition. There are extradition treaties in place between Turkey and some states such as Mongolia or Pakistan in whose territories abductions took place. Here, one must note that what makes extraterritorial operations problematic under international law is not that Turkey has made no use of the means extradition treaties bestowed upon her, but that Turkey has been conducting operations within the territories of the respective states without their prior consent.

Violation of the territorial sovereignty and a possible justification: Self-defense?

The statements made by the representatives of the respective states indicate that Turkey seems to have carried out its extraterritorial operations in those states without their prior endorsement. For instance, the Mongolian Foreign Service denounced the abduction attempt as an “unacceptable act of violation of Mongolia’s sovereignty and independence.” Likewise, in Kosovo, the Ministry of Foreign Affairs published a statement strongly denouncing the abductions as “direct contradiction to international norms”. On the other hand, the Erdogan Regime’s operations in Pakistan and Malaysia appears to have received tacit approval of the then Nawaz Sharif and Najip Razak governments respectively, given the respective authorities’ contribution to the success of the operations.

It would be pertinent to assert that Turkey violated the rules prohibiting intervention and the use of force as well as the sovereignty of the states where Turkey conducted the extraterritorial abductions without their prior consent. Although Turkey has never attempted to justify the said operations under international law and even denied any involvement therein, the Erdogan Regime occasionally advances that its relentless pursuit of the Gülenists anywhere arises out of its right to self-defense, denoting to its unsubstantiated allegation that Mr. Gülen orchestrated the coup attempt (see here).

In the light of the aforesaid, a possible justification might be self-defense. In justifying Turkey’s operations, one might assert that it acted in the face of an armed-attack which as the Erdogan regime puts was launched on the evening of the July 15 by the FETÖ, a derogatory abbreviation used by the Turkish Government to define the Gülen Movement. The evidence set forth by Ankara so far to link the coup attempt with the Gülen Movement is notably insufficient and circumstantial. (For an excellent post on the extent to which the evidence are credible, see here). But, for the sake of argument, even though it is assumed that the Movement was behind the coup attempt, Turkey has not so far adduced any finding which renders one to reasonably suspect the taking part of the abducted individuals in the coup attempt. Given that they had been living in the respective states since years before the night of the coup attempt as educators, such an assertion would be one very hard to substantiate.

Turkey’s assertion that the abducted individuals are “terrorists” who continued to pose threat of further attacks entails one also to examine whether the extraterritorial abductions are legal under the doctrine of preemptive self-defense. According to Article 51 of the UN Charter, an armed attack must occur in order for the victim State to invoke its right to self-defense. Assuming that the armed-attack on which Turkey bases its self-defense argument is the July 15 coup attempt, such an armed-attack can fairly be said to be over. That said, the threat of attack the abducted individuals allegedly posed must be ‘instant, overwhelming, leaving no choice of means, and no moment for deliberation’ (see Letter from Daniel Webster, 29 British and Foreign State Papers 1137), in order for Turkey to be entitled to invoke its customary right to preemptive self-defense.

Although the Erdogan regime tends to pin the blame for anything bad occurring in Turkey on the Gülen Movement, from the Turkish Lira’s depreciation to earthquakes which stroke various Turkish cities, the threat of a further attack which might, according to the Erdogan regime, be launched by the said group is worth attention for the sake of argument. In order for Turkey to aptly rely on the preemptive self-defense plea, it must first demonstrate that it is under an imminent, instant and overwhelming danger of attack compelling it to react in that very moment, because otherwise it would have to suffer the devastating consequences of a would-be attack which the abducted individuals was potentially to launch. One may assert that the fact that Turkey abducted the educators as opposed to choosing to kill them renders the operations proportionate. Nevertheless, Turkey has thus far failed to prove the imminence of a prospective attack, if any, to be initiated by the abducted individuals. Likewise, why the extraterritorial abductions are the only available or the most effective means to address the peril of attack is yet another question raised by the controversial operations carried out by Turkey.

Violation of human rights law governing the right to liberty

The extraterritorial abductions are a form of deprivation of liberty. Intervention to the right to liberty is in compliance with international law so long as such deprivation is not arbitrary. Under Article 9 of the ICCPR and Article 5 of the ECHR, deprivation of liberty is arbitrary in case it is not based on grounds and procedures prescribed by law. Both articles stipulates that an individual who is arrested shall be informed, promptly or at the time of arrest, of the reasons for his arrest and of any charges against him. Likewise, according to the articles, the arrested individual has to be brought promptly before a judge or a similar judicial authority within a reasonable time.

Whether Turkish operatives who conducted the abductions promptly informed the educators of the reasons for their arrest along with the charges against them is unknown. But, the facts that they did not appear before a Turkish court even months after their apprehension and that even their immediate relatives do not know their whereabouts, suggest otherwise.

Any affiliation with the private schools, financial institutions, trade unions, media organizations, or NGOs operated by the Gülen Movement is considered evidence sufficient for one to be convicted of terrorism charges under the Erdogan regime (see here). Therefore, abduction and the subsequent detention of individuals linked to the Gülenist schools abroad may not surprise one who is well acquainted with the Turkish politics. In the face of this bitter reality, it is difficult to conclude that the abducted individuals’ arrests and detentions are carried out ‘on such grounds as are established by law.’

A Brief Bio of the Author:

Yasir Gökçe is currently a Ph.D. student in the Bucerius Law School in Hamburg, focusing on the application of the law of the use of force to cyber domain. He also holds an at-risk researcher position in the Bonn University. He served as an In-house Legal Counsel in the International Law Department of the Ministry of Foreign Affairs of Turkey for several years. Before and after his tenure in the said ministry, he worked as an attorney by practice in Turkey. He obtained an MPA degree from Harvard University, an LLM degree from Ankara University and LLB degree from Bilkent University. He may be contacted at: gokceyasir@gmail.com  / yasir_gokce@hks16.harvard.edu.