Date posted: March 24, 2014

ORHAN ERDEMLI

Genocide is a crime our society is acutely aware of. Are we sufficiently informed about it even though it is considered the most serious crime against humanity?

Indeed, the word genocide brings to our minds mass killings and relocations of members of a race, usually under war-like conditions. Yet, genocide is not a war crime. It is not a type of crime committed against a specific race. Rather, it has wider connotations. This crime may be committed against a specific group, without massacring them and in a peaceful setting.

As its title implies, this article aims to discuss the recent ill treatment of members of a religious community and the operations conducted or to be conducted against them within the context of the notion of genocide in the international law.

Everything started with Turkey entering a period of three consecutive elections. In this period, Prime Minister Recep Tayyip Erdoğan started to wield hate speech and hurl unfounded accusations against Fethullah Gülen, a well-respected Turkish-Islamic scholar, and the Hizmet movement inspired by his views. He labeled the Hizmet movement as a clandestine network, colluding with foreign forces trying to overthrow the government through treason and espionage. He publicly made Mr. Gülen and his followers the target of his uncontrolled attacks. Some ministers, deputies and advisers made similar remarks. Media outlets and columnists that closely support the ruling Justice and Development Party (AKP) are carrying fuel to this ever-growing defamation attempt. Unfortunately, the party’s voter bank has been extremely incited to carry out physical attacks against the members of the Hizmet movement. Indeed, AKP supporters have beaten a teacher at a dershane (prep school) for spreading propaganda about another party and attacked a TV station for broadcasting anti-AKP news.

It goes without saying that what has been done so far constitutes crimes such as insults, threats, slanders and hate. Indeed, several individuals and organizations have filed official complaints with prosecutors, seeking legal action against the perpetrators of these crimes. Yet, what we intend to do here is to draw attention to the bigger picture and draw the public attention to this point in terms of genocide and crimes against humanity.

The crime of genocide: historical development

The definition of genocide as a crime was made possible thanks to Resolution 260 of the United Nations (UN) General Assembly. On December 9, 1948, the UN General Assembly opened the “Convention on the Prevention and Punishment of the Crime of Genocide” for signature, ratification and accession. Turkey ratified this convention with a law numbered 23.03.1950. Thus, Turkey acknowledged that genocide, whether committed in times of peace or in times of war, is a crime under international law, and undertook to prevent and to punish it.

The convention entered into force on December 12, 1951. “Being convinced that, in order to liberate mankind from such an odious scourge, international cooperation is required,” the contracting parties agreed on the provisions of the convention.

According to Article 2 of the convention, “Genocide means any of the following acts committed with intent to destroy, in whole or in part, a national, ethnical, racial or religious group, as such: (a) Killing members of the group; (b) Causing serious bodily or mental harm to members of the group; (c) Deliberately inflicting on the group conditions of life calculated to bring about its physical destruction in whole or in part; (d) Imposing measures intended to prevent births within the group; (e) Forcibly transferring children of the group to another group.”

Following the ratification of the convention, the countries that were part of it were supposed to introduce laws defining the reprehensible acts and specifying effective penalties for them in their domestic laws. However, it took 55 years — until 2005 — for Turkey to define genocide in its domestic law. Article 76 of the Turkish Penal Code (TCK) entered into force on June 1, 2005, and described a crime in which tangible and intangible components are clearly defined under the title “genocide.”

The TCK defines genocide in strict compliance with the UN convention. Article 76 reads: “Execution of any one of the following acts under a plan against members of national, racial or religious groups with the intention of destroying the complete or part of the group, creates the legal consequence of an offense defined as genocide:

(a) Voluntary manslaughter; (b) To act with the intention of giving severe corporal or spiritual injury; (c) To impose conditions that make survival of complete or part of the group members impossible; (d) To impose conditions that prevent births in the group; and (e) To transfer minors of a group to another group.”

Unlike the UN Convention, Article 76 of the TCK adds the phrase “under a plan” into the definition.

Elements of the crime of genocide

It is clear from the aforementioned definitions that for an act to be defined as genocide, it must be performed “against members of national, racial or religious groups with the intention of destroying the complete or part of the group.” This is the point we need to discuss in depth. The ruling party and pro-government groups have been uttering repeated threats such as “This is the second war of liberation,” “We will wipe them out,” “There is no mercy” and “There is no turning back.” What do these statements mean from a legal perspective? Can this discourse be regarded as evidence of “intention[s] of destroying the complete or part of the group,” which fits the definition in Article 76 of the TCK?

First, let us concentrate on the characteristics of the “group.” Prime Minister Recep Tayyip Erdoğan does not publicly use the words “Fethullah Gülen” or “Fethullah Gülen’s group” in his speeches. Instead, he uses words like “Hoca” or “The guy in Pennsylvania” in public rallies, and everyone knows for sure which group he is specifically referring to with these words. Indeed, national and international media outlets note that the prime minister is specifically targeting a group known as Cemaat (community) or the Hizmet movement, with Mr. Gülen as its leader, and the prime minister does not refute these reports.

Today, it is generally accepted both Turkey and the international arena that there is a group referred to as the “Gülen movement.” The government’s viewpoint is no different; official reports sent from various public institutions to the Ankara 2nd State Security Court (DGM) — later renamed to the Ankara 11th High Criminal Court — tried Mr. Gülen on various charges for eight years and included the description “Fethullah Gülen Group.” None of the reports sent by the National Police Department and the General Staff to the court referred to an organization or gang, but to a “group.”

The National Police Department has described the “Fethullah Gülen Group” as one of the “traditional Islamic groups and religious movements,” noting that it “focuses on activities for reinforcing the existing Islamic mentality in people and spreading the belief in God.” The report from the General Staff referred to the “Fethullah Gülen Nurcu Group.” It is clear that the “Fethullah Gülen Group” is accepted as a “religious group.” Therefore, it is entitled to be defined as a “religious group” within the context of Article 76 of the TCK.

At this point, it should further be noted that Erdoğan and his ministers have been referring to Mr. Gülen and the Hizmet movement by stating, “You are hardly a hoca [religious leader],” “They are not pious,” and “They are not a religious movement.” The general public may perceive these remarks as denigrating. But it is also possible that the prime minister might have received warnings from legal professionals in connection with ongoing operations against the Gülen movement, which, it is said, will be considerably stepped up after the local elections on March 30.

Indeed, it would be considerably difficult for the government to explain their unlawful practices. When he fully implements his ambiguous “plan to finish off the movement,” which he intends to do on a global scale, Erdoğan wouldn’t want to face genocide charges. It is possible that the reason why he frequently says this group does not have religious character is an effort to avoid charges of attempting to “destroy the complete or part of the group.”

I should point out that the first part of this piece published yesterday explained that what is intended in these articles is to discuss the recent ill treatment of members of a religious community and the operations conducted or to be conducted against them within the context of the notion of genocide in the international law.

Indeed, Raphael Lemkin, the originator of the term “genocide,” stressed that in modern times, genocide occurs in terms of the cultural, rather than physical, destruction of the targeted group. Some countries introduced a broad definition of a victim of the crime of genocide in their laws. Thus, Lithuanian, Estonian and Colombian criminal law states that social and/or political groups can be victims of the crime of genocide.

In its Akayesu (found guilty of nine counts of genocide and crimes against humanity in Rwanda) decision, the International Criminal Court (ICC) defines a religious group as “a group whose members share common religious, sectarian or ritual forms.” Members of a religious group nurture the same beliefs, follow the same guide, have common spiritual views and perform the same worshiping rites.

In its Blagojevic and Jokic (found guilty of engaging in genocide and other war crimes in the former Yugoslavia) decision, the ICC held that the heavy damage to bodily and spiritual integrity includes torture, inhuman and denigrating treatment, interrogation accompanied by battery, death threats and deportation.

In the Akayesu decision, the ICC concluded that non-physical attacks such as serious fear, threat and intimidation may lead to serious spiritual damage.

Is it possible, in this context, to claim that the ruling party in Turkey is committing the crime of genocide when it attempts to destroy a specific social group through unfair and unlawful practices? While it may be argued that the UN Convention on the Prevention and Punishment of the Crime of Genocide is limited in scope, law is not static and, in my opinion, can be open to debate.

Operations against a specific community

Why? The planned actions are not purely injustice to specific people. Rather, mention is made about operations against a specific community. However, in a country where the rule of law is appreciated, criminals are apprehended by law enforcement authorities and investigated by prosecutors and tried by courts. Currently, in stark contrast with this ideal situation, tens of thousands of public servants are being reassigned to various, and mostly, improper positions without any court decision. Pressure is being exerted to put a private bank out of business on charges of being owned by a specific “group.”

A bill has recently been passed to shut down privately run prep schools (dershanes). People are told not to send their children to the privately run schools operated by a specific “group.” Distribution of specific newspapers published by a specific group is being blocked and readers are pressurized to cancel their subscriptions. As announced by the chairman of the Turkish Confederation of Businessmen and Industrialists (TUSKON), businessmen are being threatened. Public institutions are canceling their contracts with lawyers from a specific group. In other words, all sorts of economic pressures are being exerted on members of a specific group. The whole process has gotten so completely out of control that even a journalist has been deported due to one of his tweets.

Therefore, if people who are members of the Risale-i Nur movement, or Süleyman Efendi movement or İskenderpaşa community face operations with their eventual destruction based solely on their membership in specific communities and if they suffer from crimes defined under Article 76 of the Turkish Penal Code (TCK) or in the decision of the ICC, these crimes and punishments should be brought to the agenda. Indeed, one of the goals of the genocide convention is to safeguard the survival of the groups recognized in the international arena. These rights apply to the Fethullah Gülen group. The above-mentioned incidents clearly indicate that there is a comprehensive effort at destruction that is not restricted to Turkey and that is related to social, cultural, economic and other areas.

Today, Prime Minister Recep Tayyip Erdoğan calls on everyone around the world to join in this “spree” of destruction. He issues orders to ambassadors and public officials to finish off the schools run by this group. He harshly slams those who are reluctant to join this madness. Thus, when a journalist referred to the group as a “community,” he stepped in to rebuke him, saying, “You cannot refer to them as a community; they constitute an organization.” With his ministers, deputies, party organizations and media outlets that are linked to him, he introduces a plan to create a mass smear campaign against a specific community in social, economic and other areas. Indeed, it is observed that a systematic attack is coming from the most senior members of the government through actors such as trolls on Internet forums who try to manipulate public opinion with lies and slander and even party members, who tried to raid the TV station of that specific group.

Thus, if any serious damage is done to a person who is a member of this specific group, the crime of genocide is committed as defined under Article 76 of the TCK. Indeed, the crime of genocide does not entail the total or partial destruction of a group. There is no requirement for a specific number. What matters is the total or partial destruction of a group. If this is the intention of any attack, that attack is considered a crime of genocide if it kills even a single person.

A crime needs to be defined in terms not only of the intention, but also of corpus delicti. In the assessment of the corpus delicti of a crime, it is examined whether acts are “performed under a plan.” This signifies the planned and systematic character of an attempted crime. Given the current developments, it can be argued that a plan with political intentions has been made. Indeed, the prime minister has declared war against this group for the first time, although he has been on good terms with it for the past 12 years.

‘Mainstream AKP has seen Hizment movement as rival’

In his article that appeared in Aksiyon newsweekly on Feb. 24, Ali Ünal made the following analysis regarding this war: “The main political strand within the AKP [Justice and Development Party] has never fully accepted the Hizmet movement; rather, it sought to obtain a pledge of allegiance from it and unconditional submissiveness. The Hizmet movement couldn’t do this. Therefore, the mainstream AKP has always been cool toward the Hizmet movement and seen it as a rival. And in recent years, the AKP actively engaged in a competition with it. And when it started to feel itself sufficiently powerful, it took action to finish off the Hizmet movement.”

Like many other columnists, Ünal maintains that the Justice and Development Party (AK Party) is waging a war on the Hizmet movement as the latter refuses to pay homage to the AK Party and notes that the plan to finish off the Hizmet movement was taken during a National Security Council (MGK) meeting in 2004. The leaked document about this decision is concrete evidence of this plan. While the prime minister’s chief adviser, Yalçın Akdoğan, said that this document is “null and void,” there are many reports about how this plan was implemented.

In another Aksiyon article (published on Feb. 3), Ünal Tarık argues that “the government used the graft and bribery investigation of Dec. 17, 2013, as a pretext for waging war on the Hizmet movement” and that “the government decided to destroy the Hizmet movement completely because it failed to secure its allegiance.”

In an article he wrote on Dec. 30, 2013, pro-government columnist Abdurrahman Dilipak revealed that he knew an operation against the Hizmet movement had been under way for about a year. This means the prime minister had been masterminding an operation against the Hizmet movement even before the Gezi Park protests and the graft and bribery operation, of which he publicly accused the Hizmet movement.

In a recently leaked voice recording, which was not denied by those involved in it, Erdoğan’s son, Bilal, tells his father that an operation should be launched against the Hizmet movement.

All these incidents indicate that the ruling party has used and will use laws in accordance with Erdoğan’s plans. Thus, a group cannot be destroyed solely with mass killings. It can be destroyed also with unfair and unlawful practices by passing specific laws, as we saw in many cases in the past. Today, government members talk about which lawsuits will be launched with what charges against whom. Perhaps, prosecutors have been replaced with politicians in this country, and we don’t know it. In this setting, it is obvious that any lawsuit to be launched against Mr. Gülen on charges of running an illegal organization will be completely illegitimate.

These unprecedented attacks against a specific group should not be treated with a broad perspective, but with specific emphasis bearing in mind Lemkin’s notion of genocide.

*Orhan Erdemli is a lawyer of Turkish Islamic scholar Fethullah Gülen, whose principles inspired the faith-based Hizmet movement.

Source: Todays Zaman , March 23, 2014

Tags: Defamation of Hizmet | Fethullah Gulen | Hizmet (Gulen) movement | Turkey |