One of the main topics of the country's agenda last week was an order sent by the Bureau of Crimes against the Constitutional Order at the Ankara Public Prosecutor's Office to the police departments of 30 provinces.
The media coverage of this order created a great deal of debate in the country. Many people, including retired judges and prosecutors, lawyers, columnists and intellectuals, as well as civil society organizations, have reacted to the order. Deputies with legal expertise made remarks criticizing it. Atilla Kart, a member of Parliament's Constitution Commission, said this order aims to "create terror suspects." Sezgin Tanrıkulu declared that the instruction is "an unlawful order" and that it should be returned without being implemented. Oktay Vural described it as an effort to "declare people who engage in benevolent or educational activities as [members of] a terrorist organization." The main thesis of these reactions and debate was: The order in question seeks to create an armed terrorist organization out of a civilian community.
But what is a "terrorist organization"? We need to discuss it. Accordingly, I will briefly discuss what a "terrorist organization" is, although it is a lengthy subject. To this end, we will travel back in time, as the debate is characterized by comparisons to the postmodern coup of Feb. 28, 1997 -- when the Turkish military forced the coalition government led by the now-defunct conservative Welfare Party (RP) out of power, citing alleged rising religious fundamentalism in the country.
At that time, the defamation campaign against Fethullah Gülen and the Hizmet movement was carried out by certain media outlets. Then articles and news stories that appeared on these media outlets were used in the investigation's case file against Gülen. Some imams or students who claimed to be former members of the community appeared on TV, hurling various accusations at the community, and they then testified at the prosecutor's offices or the courts.
Companies, foundations, schools, newspapers and publications were profiled as belonging to the "community" and listed as part of the terrorist organization. Prosecutor Nuh Mete Yüksel had sent a similar order to the police departments of 80 provinces. He sought to create a "Fethullah Gülen terrorist organization" with that order. Although he described the community as a terrorist organization, he wrote in the indictment, "The Fethullah Gülen group functions legally and makes use of democratic rules." This was a legal scandal. The following was his gift to legal terminology: "A legal democratic terrorist organization."
However, no terrorist organization could be found in the answers from 80 police departments. Rather, the answers refer to the "Fethullah Gülen Group," not to a "terrorist organization." They underlined that the group's activities were "lawful," the group was "conducting educational activities" and the Group was "not involved in any reprehensible act." Moreover, the letter sent by the General Staff also referred to the community as the "Fethullah Gülen Group" and did not mention any terrorist activity of this group.
What is terrorism then? What are the characteristics of a terrorist organization?
"Terrorism" as a crime was introduced to domestic law with Counterterrorism Law (TMK) No. 3713, which entered into force in 1991. In the "explanatory note" to this law, the purpose of this law is described as "to promote the fight against terrorist organizations which use violence as a means while rectifying the restrictive provisions for facilitating the organization of non-violent institutions."
TMK Articles 1 and 7 define "terrorism," "terrorist organization," the purpose of terrorism and the elements of the crime.
Article 1 sets forth the aim of terrorist acts as follows: "Changing the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the State with its territory and nation, endangering the existence of the Turkish State and Republic, weakening or destroying or seizing the authority of the State, eliminating fundamental rights and freedoms, or damaging the internal and external security of the State, public order or general health."
Moreover, for these acts to be defined as terrorism, they should be performed "by means of pressure, terrorism, intimidation, oppression or threat."
For an act to fall into the category of a terrorist act, it must be conducted using "force and violence" in addition to these characteristics.
Like the TMK, international conventions and research commonly search for the element of "violence" when describing an act as "terrorist."
"Violence" was considered a fundamental element of definitions of terrorism in the conferences held for the unification of international criminal law in Warsaw, Paris, Madrid and Copenhagen. The Geneva Convention refers to "acts of terrorism" as acts which aim to "spread terror among certain individuals or groups of individuals or the entire society or which are expected to create horror and which target the state." In United Nations documents, terrorism is defined as acts of violence that threaten or take human life or undermine fundamental freedoms.
For an organization to be labeled as "terrorist," it should disrupt or aim to disrupt the public order with criminal acts. If daily life is crippled in at least part of the country, we can talk about a terrorist act.
In this context, the effort to categorize the intellectual or social activities that Mr. Gülen has conducted or will conduct within the ambit of freedom of religion and conscience and freedom of thought, using the rights enshrined in the Constitution, as terrorist acts will not be accepted by Turkish and international legal authorities.
Likewise, an attempt to treat civilian foundations, associations and educational or commercial establishments that are run within the framework of constitutional freedoms as terrorist organizations will certainly lead to a breach of universal legal norms.
In the past, there had been attempts to portray the Hizmet movement as a terrorist organization, and these failed. This is because no evidence could be produced to show that any member of this movement sought to "change the characteristics of the Republic as specified in the Constitution, its political, legal, social, secular and economic system, damaging the indivisible unity of the State with its territory and nation…" No such claim had even been voiced, except by some ill-intentioned people. How could such a claim be made?
For instance, did anyone from the people who sent their children to the schools or exam preparatory schools run by this movement, including the deputies of the ruling party, say that they sent their children due to pressure, fear, intimidation or threats? Did you hear anyone claiming that he had been pressured or threatened during the education of his children? Did anyone say that he had participated in charitable activities due to pressure or threats? Did anyone say that he had deposited his money in the bank due to pressure? Did anyone buy a newspaper due to threats?
Providing proof for a claim
Yet for any claim about the presence of a terrorist organization to be made, proof must be provided about the existence of a network that seeks to destroy the basic order and systems of the state by force and violence. There must be concrete evidence of the "pressure, terror, intimidation, oppression or threat" employed by the terrorist organization. This is because only the existence of a network that employs terrorist methods can create compulsion or psychological coercion on the public.
Based on the defense we presented to the Ankara State Security Court in 2003, I would like to exemplify this concept of compulsion as follows: "In the past, there were big massacres in the villages and cities, people's houses were burned down, and young people were kidnapped and recruited by the Kurdistan Workers' Party [PKK]. There were assassinations, bomb attacks, kidnappings, collection of money for the organization through threats, etc., in cities, including those located in the western parts of the country. Freedom to travel was breached, as the roads in some parts of the country were blocked, and passengers were killed. Educational institutions were completely closed down, teachers were killed, students were prevented from attending school, and schools were burned down. Government offices were exposed to various attacks, including suicide attacks. The fear and worry stemming from these acts had a coercive effect on society. People were concerned about imminent harm to themselves and their families. They were forced to leave their villages, they were forced to keep their workplaces closed, and they were forced to stay away from schools.
"Which methods did the organization that is claimed to exist in the case file employ to create compulsion? Against whom? Where? Are there concrete examples of this compulsion? If so, what are they? Did people evacuate their settlements out of fear from this organization? Did they avoid traveling? Did they keep their shops closed? Were students prevented from attending schools? Were teachers not inclined to work at these schools? Neither the indictment nor the proceedings have produced any concrete evidence of compulsion. During the proceedings, it became clear that there was no such organization and that the compulsion was nothing but pure speculation."
*Orhan Erdemli is the lawyer of Turkish Islamic scholar Fethullah Gülen, whose principles inspired the faith-based Hizmet movement.
Published Today's Zaman, 14 July 2014, Monday