Dr.

Kubilay Yado Arin

Turkeys EU Accession Bid, her Path to Democracy?

I. Introduction Since the 1980s, the European Union (EU) has been criticizing the plight of human rights and of the rule of law in Turkey with a greater emphasis and has been demanding improvements. Both in the final reports of the European summits and in the annual progress reports on Turkey since 1998, eonomic and political reasons have been given for the European rejection of Turkeys EU bid. In the first instance, grave shortcomings in Turkish democracy were faulted, and herein lied the main obstacle to Turkeys accession. Consequently, the EU made clear at its Luxembourg summit in December 1997 that the way to Europe for Ankara leads over the observance of human rights, and the peaceful solution of the Kurdish question and of the disputes with Greece and Cyprus.1 Despite Ankaras lacking initiative in the matter of democratization, the European Council recognized for the first time at its Helsinki summit in December 1999 its capability of membership and reassured at the same time that Turkey could reckon with the steady start of accession talks after compliance with the so-called Copenhagen criteria. Helsinki brought Turkey both a breakthrough in its relations with the EU and a new dynamic in the process of democratization. Whereas just a short time before the Helsinki resolution only Kurds and intellectuals had demanded more democracy, from then on the Turkish public supported their calls. The first concrete steps followed in 2001. Then, the EU Commission compiled the Accession Partnership Document for Turkey that should facilitate her EU bid as a road map in accordance with previous decisions. Thereupon, Ankara responded with the elaboration of its National Program for the adoption of the aquis communautaire. In this program, Turkey made the declaration of intent as to when she will comply with the demands of the Accession Partnership Document. In addition, the European Council conceded time to Turkey at Copenhagen in December 2002 to implement the requirements of the Copenhagen criteria in her legal system by the end of 2004. As early as December 2004, the European heads of states and of governments agreed formally on commencing membership negotiations with Turkey after long hesitation.2 II. Opposing Views on Turkeys EU Accession Bid For a long time, Turkey saw EU membership as the eventual end of a westward journey that began in the early 19th century. In exchange for this goal, Ankara accepted its role as a NATO bastion in the Cold War and, more recently, as a pupil to be tutored by the EU on democracy as well as human and minority rights. Debate on Turkey in the West is sharply divided between those who see Turkey moving away from the West and toward a more Middle Eastern and Islamic orientation and those who see Ankaras improved ties with Iran and Russia as a natural progression toward balance and diversification and a potential boon for Turkeys NATO and EU partners.3 Since the end of the Cold War, the European countries have attributed less meaning to Turkeys geostrategic and geopolitical importance, and rather stress the introduction of democracy, the rule of law and, most notably human rights.4 The EU emphasizes in its relations with Ankara not only the security partnership but in particular that of the integration partnership which is committed to market principles and values of competitiveness, democracy and civil society.5 The blocs annual report on enlargement strategy and main challenges highlighted recurring infringements on liberty, security, fair trial and freedom of expression.6 The European assessment of Turkey differs in this regard from the US appraisal of Ankaras contribution to European security and stability as NATO partner.7

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Bulletin of the EU 121997, Cypher 1.6, Point 31. Werner Weidenfeld: Die Europische Union. (Paderborn: UTB 2010), p. 26. Soner Cagaptay: Is Turkey Leaving the West? An Islamist Foreign Policy Puts Ankara at Odds With Its Former Allies. Foreign Affairs, October 26, 2009. Hseyin Baci: Trkische Sicherheitspolitik. Mittelpunkt des neuen geopolitischen Koordinatensystems, Internationale Politik, 1/1998, p. 31. Heinz Jrgen Axt: Zankapfel im Mittelmeer. Zypern vor dem EUBeitritt. Internationale Politik 1/1998, p. 28. Emre Peker: Turkeys EU Accession Talks in Deadlock. The Wall Street Journal, October 10, 2012. So the special envoy of US president Bill Clinton, Richard Holbrooke. Tomas Avenarius, Sddeutsche Zeitung. December 20, 1997.

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By integrating Turkeys military potential into the ESDP, a security community in Western Europe could ultimately manage to control and mitigate potential conflicts at its borders: proliferation of weapons of mass destruction, failed states, organized crime, terrorism, and regional conflicts.8 The conflicts in the Balkans and the Caucaus have proven how important it is that the EU extends its peace mission to the whole continent. The EU could analogously furnish security to its member Turkey by delivering peace, moderation, stability, and prosperity to its crisis-torn relations with its neighboring states in the Balkans, the Caucasus, and the Mideast. Therefore, Brussels will have to assist Ankara in its pursuit for the peaceful reconciliation of interests in the region. The Turkish armys contribution to European security beyond NATO structures seems in turn indispensable in the wake of 9/11.9 Nonetheless, former French President Nicolas Sarkozy and German Chancellor Angela Merkel have repeatedly denied accession to Turkey and proposed privileged partnership instead. Sarkozy rebuked President Barack Obama when the US President advised the EU to take Turkey in. Former US Secretary of Defense Robert Gates contended that the West risked losing Turkey, accusing the European Union of denying accession of a Muslim nation to the EU and causing Ankara to turn east.10 In short, a negative decision of the European Council in December 2004 for the start of EU accession talks with Turkey contradicted US geopolitical ambitions, since Washington feared that the influential Islamic circles in Turkeys ruling party AKP could use this occasion to pursue a renunciation of the Western alliance for an alignment with Western rivals Russia and Iran.11 III. The Copenhagen Criteria and the Accession Partnership Document At their Copenhagen summit, the EU member states had set criteria in December 1993, under which the membership should be conceded to each candidate country in future. Thereafter, each EU candidate was expected

to meet (...) the Copenhagen political criteria, which require stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and protection of minorities.12 To encourage and support reforms, the candidate countries were to profit from an European pre-accession strategy, whereby the emphasis lay in the case of Turkey on the progress in the domains of democracy and human rights. In Helsinki, the European Council decided on the underlying conclusions of its earlier meetings in due consideration of the Copenhagen criteria to prepare the Accession Partnership Document. In this document, priorities were to be scheduled in which the respective applicant had to focus in the implementation of its National Program. After consultations with Turkey, her Accession Partnership Document13 was ratified by the European Council on 26 February 2001 and came into effect on 24 March of that year. The political part of the document contained shortand medium-term priorities for Turkey. The short-term priorities were those on which Turkey was to make progress by the end of 2001. For the medium-term priorities, the end of 2003 was set as a deadline. The Accession Partnership Document was predominantly received favorably on the Turkish side, since the wording of the document followed close consultations with Ankara: Turkey was pleased with the EUs careful choice of words. Though Brussels had continually mentioned in past official reports the rights of Kurds, the Accession Partnership Document did not refer to this ethnic minority at all. The rights of the Kurds were implicitly demanded from Turkey by allowing Turkish citizens the use of their mother tongue on TV and on radio. Nonetheless, the far-right government party MHP rejected this European requirement.14 IV. The National Program of Turkey The implementation of EU provisions and the compliance with the political criteria of Copenhagen resulted in far-reaching modificati-

8 9

10

11 12 13 14

The five main threats to the EU in the European Security Strategy 2003. Josef Janning: Europa von der Zivilmacht zur militrischen Reaktionsfhigkeit. In: Mir A. Ferdowsi (Ed.): Sicherheit und Frieden zu Beginn des 21. Jhdts. Konzeptionen-Akteure-Regionen. (Mnchen: Bayerische Landeszentrale fr Politische Bildungsarbeit 2002), pp.165-180. Mark Champion and Peter Spiegel: Gates Says EU Pushed Turkey Away. U.S. Defense Secretary Blames Blocs Resistance to Granting Membership for Ankaras Turn from Israel and the West. The Wall Street Journal, June 10, 2010. Henry J. Barkey: Geopolitics. Turkeys chill further isolates Israel. Los Angeles Times, September 8, 2004. European Commission: Turkey 2012 Progress Report. Brussels, October 10, 2012, p. 6. The Accession Partnership Document, in: Amtsblatt der Europischen Gemeinschaften L85/13, March 24, 2001. Udo Steinbach: Die Geschichte der Trkei. (Mnchen: Verlag C.H. Beck, 2001), p. 207.

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ons in the political system of Turkey and the premises of the Turkish conception of the nation state. In particular, the military leadership and the ultra-nationalist partner MHP, in coalition government with the nationalist-left DSP and the conservative ANAP, resolutely opposed the unreserved acceptance of EU criteria. On these grounds, they urged the formulation of the National Program (NP), which was designed to both signal an accomodation to European perceptions and should preferably save the national raison dtre.15 On the crucial issues the death penalty, the Kurdish question, freedom of opinion, the role of the military the actual substantial controversies were postponed. The sacrosanct pillars, such as the Turks as a sole nation, the indivisibility of the state, national security, laicism, and the republic as unitary state with the protection of national unity, were manifested in the National Program. The NP not only comprised of political criteria similar to the Accession Partnership Document but also other relevant policy areas. Here, merely the political part will be discussed.16 Considering the Kurdish issue, the NP lapidary stated: The official language in Turkey is and remains Turkish. Each citizen is free to speak his own language. Neither education nor TV or radio programs in mother tongues other than Turkish are mentioned. In the case of the freedoms of thought and expression, the NP insists on the outdated status quo. Thus, the coalition government was not prepared to amend or even repeal 312 of the Turkish criminal code, which obstructs freedom of thought and hovers like a sword of Damocles over the heads of intellectuals and critics of the regime. Respectively, the NP does not essentially alter the role of the National Security Council, by which the generals as true rulers of Turkey had exercised their power. Consequently the ban of the death penalty emerges as a medium-term objective. Fear of Kurdish secession has long been the canker in Turkish democracy, the justification for a raft of laws that restrict human rights and the freedom of

expression. Instead of declaring that there is no Kurdish problem, as it did two decades ago, the Turkish government now appears to be saying there is no Kurdish solution. And as long as Turkey blurs the line between terrorism and legitimate protest, it will continue to alienate its Kurdish population while legitimating the men of violence. 17 The NP did not please anyone in Turkey save the three ruling parties. The opposition expressed its distrust in the program. The Turkish employers association TSIAD, which in the past years had attracted attention because of its commitment to democratization, stated on the NP: When you compare this programm to the Accession Partnership Document, then you can ascertain that some political criteria have almost been disregarded and some deficiencies that had actually to be removed are not mentioned at all and thus ignored. Wording in abstract terms cannot solve the problems in Turkish democracy. For this purpose, a concrete naming of legal steps would be prerequiste.18 Nevertheless, on 19 March 2001 the Turkish parliament ratified the National Program, which was passed on to the EU commission on 26 March. The enduring protection of political rights requires that they be embedded in a system of checks and balances: not just a popularly elected parliament but also a free press, independent political parties, mechanisms for citizens to pursue their grievances through politically neutral institutions, and an independent judiciary.19 In summary up, we may say that the Ecevit administration conveyed the impression in the National Program that Turkish democracy did ultimately already functioning,making amendments merely to satisty Brussels. Beyond this, there was no debate on the rights of minorities and on the abolition of antidemocratic government bodies such as the National Security Council and the State Security Courts (a

15

16 17 18 19

Heinz Kramer: Das Nationale Programm der Trkei fr die bernahme des geminschaftlichen Besitzstandes. (Berlin: Stiftung Wissenschaft und Politik, 2001). The Cyprus question and the relations to Greece, that are treated in this section, are not under consideration. Andrew Finkel: Kurds and the (Turkish) Way. The International Herald Tribune, September 5, 2012. Program falls short of expectations. Turkish Daily News, March 20, 2001. Madeleine K. Albright, Stephen J. Hadley and Steven A. Cook: U.S.-Turkey Relations. A New Partnership. Independent Task Force Report No. 69. (New York: Council on Foreign Relations Press 2012), p. 25

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requirement of the European Parliament).20 Therefore, the military played as major a role as Atatrks tomb guards in circumventing democracy. V. The Constitutional Revision on 3 October 2001 The constitutional revision in October 2001 represented the first important reform step under the coalition of DSP, MHP, and ANAP after the NP. During the passage of the legislative package, the parliamentarians debated on four issues the freedoms of expression and of the press, the death penalty, the immunity of lawmakers, and international agreements.21 In the end, all articles of the bill containing these issues were undermined or prevented in parliament by either the intervention of the military or the coalition partner MHP. The first proposal for modification in the draft was related to the freedoms of opinion and of press. The Ecevit administration had suggested that the formulation of opinion and view should replace the term action. Hereby, only the opinion should no more be punishable. Yet, the general staff was against this amendment because it would weaken the war on terror. The MHP shared this concern and as a consequence the constitutional commission used instead of the term action the more unspecific notion of activity. In doing so, each activity that is directed against Turkish sensibilities, such as national interests, historical and ideational values of Turkishness, and principles and reforms of Atatrk remained a punishable offense. Ankaras international partners should urge the Turks to abolish or reform nondemocratic laws, regulations, rules, and decrees that, in tandem with the existing constitution, undermine Turkeys democratic practices. These include Article 301 of the penal code, which makes insulting Turkishness a crime. Despite the limited use of Article 301 recently, it remains in place and thus contributes to persistent questions about Turkeys democratic transition.22 Not only violent actions or worldviews glorifying violence were forbidden, but rather each

kind of protest, even political and cultural activity of a peaceful nature that turned on these aformentioned bans. In the case of a political party demanding the peaceful solution of the Kurdish question, a federal state structure similar to Belgium or autonomy like in the Basque Country, Turkish courts could classify these demands as activity for the division of the state territory and the people. The same applies to ordinary citizens that express their opinion on this. The old legal restraints and the undemocratic rulings continued. The legal framework on organised crime and terrorism is still imprecise and contains definitions which are open to abuse, leading to numerous indictments and convictions. Moreover, its interpretation by prosecutors and courts is uneven and is not in line with the European Convention on Human Rights or the case-law of the European Court of Human Rights.() In short, writing an article or making a speech can still lead to a court case and a long prison sentence for membership or leadership of a terrorist organisation. Turkey needs to amend its penal code and anti-terror legislation to make a clear distinction between the incitement to violence and the expression of nonviolent ideas.23 Article 26 signifies that freedom of opinion can be restricted on the following grounds: the imperilment to national security, public order, safety of the commonality and the indivisible unity of state territory and of people.24 Past practice of the police and public prosecutors demonstrates that any assertion, any publication, any picture, and any caricature can be prosecuted on these grounds. Turkish courts have imposed fines, confiscated publications and prohibited them as well. A further amendment in Articles 26 and 28 of the constitution left out the phrase: in a legally forbidden language you are not allowed to publish. By legally forbidden language everybody knows in Turkey that Kurdish is meant. Nonetheless, the legislator did not want to call it by name. For years, to argue for Kurdish rights let alone regional autonomy or simply to write in Kurdish could mean prison; such acts were considered aiding and

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Hartmut Hausmann: Fortschritte der Trkei auf dem Weg zur EU. Neue Zrcher Zeitung, June 5, 2003. The content of the constitutional revision. www.belgenet.com (accessed September 14, 2012). Albright, Hadley and Cook (2012), p. 25. Ibid., p. 22. Anayasa degisikligi [constitutional revision]. www.belgenet.com/yasa (accessed September 11, 2012).

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abetting terrorism. Kurdish political parties were shut down. Political activists were tortured. In what became Turkeys own dirty war, thousands of people were assassinated or disappeared.25 In separate cases, thousands of Kurdish politicians and activists are on trial nearly 1,000 among them detained for alleged links with terrorist activities. Turkey holds more journalists in jail than China and Iran combined.26 A short-term EU requirement for Turkey was the ban of the death penalty. Here, the Ecevit administration did not entirely suspend capital punishment in Article 38. Thus, the new wording of this article read: There can be no death penalty inflicted except in times of war and in imminent threats of war. Threat of war can be easily perceived in a country such as Turkey which has constantly been under martial law and emergency rule throughout its history and has maintained crisis-torn relations with its neighbors, as in the case of Syria. One of the ameliorations hoped for in the constitutional revision consisted of the guarantee of freedom of organization, which would prevent the ban of political parties. However, the amendment in Turkey has in this respect made no progress. On the contrary, new fines for parties were imposed, such as the annulation of state subsidies. Opposition parties not favored by the Turkish state were excluded from these grants. In this way, a new foundation for the unfair competition between parties was instituted.27 The European Commision points out that: There has been no progress in aligning the law on the closure of political parties or laws on the financing of political parties and election campaigns with European standards. 28 In addition, the modification of Article 118 of the constitution, relating to the National Security Council (NSC) was not adequate. In the NSC the generals had the majority and the-

reby the final say. The NSC obligatorily detemined not only the policy on national security but also the entire domestic and foreign policy in important affairs. Parliament could not pass laws that were opposed to its decisions. The democratic public had long asked for the abolition of this institution. The Accession Partnership Document called for the end of the extraordinary influence of the NSC, suggesting transforming it into an advisory body of the government. Ultimately, the single adjustment consisted of the participation of the attorney general in its sessions and the voting right for the deputy prime minister. One of the rejected articles by the plenum was the incorporation of international agreements into national law. Such an adaptation was also required by the EU commission. But the Turkish parliament had decided that this amendment would be an obstacle to national sovereignty and thus declined it. In this manner, it ignored European demands that international human rights conventions in particular, such as the ECHR, would come into legal force in Turkey. VI. The Reform Packages of the DSP-MHPANAP Administration After the constitutional amendment of 2002, several reform packages were enacted, three of which were under the coalition government. The first reforms, called the mini-democracy package, were adopted in February 2002 by the Assembly. The most important part of these reforms formed the modification of 159 and 312 of the Turkish criminal code and of 7 and 8 in the anti-terror law. 29 The second reform package was accepted in March 2002 by lawmakers.30 Passed on August 3, 2002 after the constitutional revision in 2001, the third reform package represented the most extensive amendment. The legislative changes included following renewals: 1. The Kurdish minority obtained the rights to broadcast TV and radio programs and to teach at private schools in its mother tongue under state supervision. 2. The death penalty was removed except in times of war.

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Andrew Finkel: Kurds and the (Turkish) Way. The International Herald Tribune, September 5, 2012. Dani Rodrik: Turkeys Miscarriage of Justice. The Washington Post, September 23, 2012. HRW says Turkey missed big chance for reform. Turkish Daily News, October 4, 2001. European Commission (2012) p. 9. New era opens with EU reforms. Turkish Daily News, December 10, 2002 Heavy schedule to dominate Parliament. Turkish Daily News, March 25, 2002.

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3. Past capital punishment sentences were converted into life sentences without the possibility of pardon. 4. The restrictive regulations on the freedom of association, of assembly and of presss were eased. Moreover, foreigners were allowed to demonstrate. 5. Rules in the penal code that provided high prison sentences for offendingstate bodies or the armed forces were abolished. 31 The coalition partner MHP put up fierce resistance against the amendments. At the vote in parliament, all MHP lawmakers balloted against the draft. Hence, one ruling party voted aginst its own government. The law was passed with the consent of the opposition. Following this verdict,, the leader of the farright MHP, Devlet Bahceli, went to the constitutional Court.32 While for the MHP the modification went too far, Kurdish associations in the diaspora criticized that Kurds were not recognized as a distinct ethnic minority and that teaching of Kurdish in public schools was still prohibited. VII. The Reform Packages of the AKP Administration On November 4, the Islamic-conservative AKP gained the absolute electoral majority in the Assembly.33 After taking office, the fourth reform package was issued on December 4. Shortly before the Copenhagen summit, the fifth reform package was passed, on December 9.34 With these reforms 16 laws were altered.35 The fifth reform package gave Turkish citizens the chance of the resumption of cases according to rulings of the European Court of Human Rights and contained an amnesty for exmatriculated students on political grounds. Therewith, the detained Kurdish lawmaker Leyla Zana could appeal to Turkish courts to lift her 1994 prison sentence. Zana was in prison merely for having spoken in Kurdish

within the Turkish Parliament and was arrested shortly after her discharge.36 In the run-up to the Copenhagen summit, the AKP intended to prove its will to reform the EU states and receive a clear date for the start of the accession talks. In December 2002, the European Council conceded time until the end of 2004 to implement the Copenhagen criteria. More than delight at a fixed schedule, the political elite in Ankara felt confirmed in its assessment that it was not treated fairly by the EU. This injustice and wait-and-see policy was criticized by broad sections of Turkish society. The EU was accused of double standards because Turkey had undertaken enormous efforts to develop a western-oriented democracy in the previous three years.37 In this view, the conjunction of a specific date to new conditions was not justified and was further proof that the EU saw itself as a Western Christian club.38 Against this frustration,39 the EU requirements complied to by each applicant are unequivocal with regard to their validity. As a sign of goodwill, the AKP government modified the law on the National Security Council on January 15, 2003. The amendment defined the role of the NSC in the spectrum of national security as an advisory council. This advisory role of the military existed for the time being on paper. The generals had de facto dominated the fate of the republic; however, the Ergenekon and Sledgehammer cases offered the AKP the chance to arrest leading opponents in the military, security, and intelligence services the so-called deep state.40 Nevertheless, Turkey needed to abolish the internal service codes of the armed forces that previously served as the legal justification for the militarys intervention in politics.41 The Ombudsman Institution does not have the right to conduct inquiries on

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New era opens with EU reforms. Turkish Daily News, December 10, 2002. Kemal Balci: Tension is high within MHP. Turkish Daily News, February 3, 2002. Nedim Grsel: Brckenweg oder Scheideweg? Die Trkei zwischen Islam und europischer Integration. Neue Zrcher Zeitung, November 27, 2003. Raul Lautenschtz: Erdogans risikoreicher Reformkurs. Die Trkei erwartet vom EU-Gipfel eine klare Antwort. Neue Zrcher Zeitung, December 10, 2002. The constitutional revisions. www.belgenet.com/yasa. (accessed September 14, 2012). Parliament to discuss second EU-reform package. Turkish Daily News, December 10, 2002. Andres Wysling,: Europa und die Trkei ein Beziehungsdrama. Neue Zrcher Zeitung, December 14, 2002. Raul Lautenschtz: Giscard dEstaing gegen eine EU-Mitgliedschaft der Trkei. Neue Zrcher Zeitung, October 9, 2002. James C. Helicke: Frustration and uncertainty prevail as EU summit ends without date for Turkey. Turkish Daily News, December 15, 2002. Albright, Hadley and Cook (2012) p. 21. Ibid., p. 25.

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its own initiative. Its mandate covers administrative acts of the Turkish Armed Forces and excludes their military acts.42 In January 2004, Turkey signed Protocols 6 and 13 to the ECHR, abolishing the death penalty in all circumstances, including wartime. A major step was the sixth harmonization packages repeal of Article 8 of the Anti-Terror Law. This had been used for the imprisonment of journalists and publishers for crimes against the indivisible unity of the Turkish Republic. In the summer of 2003, the Turkish Parliament ratified the International Covenant of Civil and Political Rights and the International Covenant on Economic, Social and Cultural Rights, although in the latter case reservations remained concerning minorities rights.43 Turkeys overall approach to minorities remained restrictive. Turkey maintained its reservations to the UN International Covenant on civil and political rights regarding the rights of minorities and to the UN Covenant on economic, social and cultural rights regarding the right to education, which remained a cause for concern. Turkey has not signed the Framework Convention for the Protection of National Minorities or the Charter for Regional and Minority Languages.44 The seventh adjustment package adopted in July 2003 made major changes to the NSC. Instead of meeting every month, the NSC would meet once every two months. A civilian (an ambassador) was appointed as Secretary General of the NSC, traditionally reserved for a military official, in August 2004. This reform package removed the NSCs representative from the Censure Board-RTK in Turkey, thereby decreasing its control over Turkish broadcasting. Article 312 of the Penal Code will be added exceeding the limit of criticism clarifying clause, while the expression praising terrorism in Article 7 of the

Anti-terror Law will be replaced with praising use of force.45 The situation regarding the respect for fundamental rights continues to be the source of serious preoccupation, notably stemming from the wide application of the legal framework on terrorism and organised crime, which leads to recurring infringements of the right to liberty and security, of the right to a fair trial and of the freedom of expression, assembly and association.46 The eighth constitutional reform package, in May 2004, made ten major amendments to the Constitution, abolishing the State Security Courts, giving constitutional security to the freedom of the press, and most importantly giving priority to the international treaties ratified by the Turkish Parliament over the Constitutional Court, Article 90 of the Constitution. Furthermore, this package removed the Chief of Staffs representative from the Higher Education Board (YK). The ninth constitutional reform package in June 2004 removed the already abolished death penalty from the Turkish Constitution.47 Nevertheless, the European Commission warned that the parliaments purpose in dealing with major policy questions remains restricted and that it should consult systematically with civil society and affected parties throughout the decision-making. Furthermore, it has a limited capacity to oversee the defense spending. On the reform of the legislative structure, especially the laws on elections and political parties and parliaments rules and procedures, parliament should become more firmly in control of the government.48 VIII. Setbacks in Democratization While the AKP ran against the militarys interference in politics and the judiciary, it was confronted at the same time as a government party with a possible legal ban. In the course of the EU accession bid, the AKP had incurred the wrath of the army by recognizing the democratic rights of the Kurds. The diplomatic rap-

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European Commission (2012) p. 11. Human Rights: Policy Objectives and Developments. Republic of Turkey. Ministry of Foreign Affairs. www.mfa. gov.tr/human-rights_policy-objectives-and-developments.en.mfa (accessed September 16, 2013). European Commission (2012) p. 31. Kemal Balci: Seventh reform package aims for civilianization. Turkish Daily News, July 13, 2003. European Commission, Turkey 2012 Progress Report, pp. 74-75. Human Rights: Policy Objectives and Developments. Republic of Turkey. Ministry of Foreign Affairs. European Commission (2012) pp. 9-10.

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prochement to the Islamic neighboring states in the Near East, Central Asia, and the Caucasus was not only suspiciously eyed from the West, as critics at home and abroad brought forward claims of a stealthy Islamization of Turkish bureaucracy.49 The AKPs electoral victory in 2002 had raised hopes of a peaceful solution to the Kurdish issue, but the generals put his administration under pressure to act resolutely against the Kurdish insurgents. The military command pursued the ban of the Kurdish DTP, which had won 21 seats in the Assembly in 2007. Soon afterwards, lawmakers decided to indeed ban the DTP, accusing it of being the political wing of the PKK.50 Though the AKP supported the request of the chief prosecutor to ban the Kurdish DTP, Erdoan claimed to protect the rights of minorities and democracy.51 Turkey has no western understanding of minority rights despite its large minorities of Alevis and Kurds. The nonrecognition of Kurds as a distinctive ethnicity harms the inner stability of the country in the long run.52 The EU Commission regularly reviews whether Turkey is implementing its political and legal reforms and especially improving the protection of basic rights and liberties.53 With a view to religious liberty and the emancipation of Kurds, the EU must insist on constitutional reform, demand its prompt implementation and force Ankara to observe democratic principles.54 Not until 2007 did Erdoan announce the incorporation of European civil rights into the Turkish constitution. He wanted to guarantee all citizens their liberties and freedoms. From then on zero tolerance against torture and extra-legal executions was meant to prevail. The judiciary was to be independent and im-

partial in order to execute the vision of a state that respects human rights.55 The EU Commission criticized this as follows: In general, efforts to fight impunity for human rights violations have been insufficient. Prompt, thorough, independent and effective investigation of allegations of torture committed by security and law enforcement officers is often lacking. Moreover, there is no exception from the statute of limitations for torture cases.56 The EU Commission asked for certain conditions that Ankara found it difficult to satisfy. One of these terms concerned the enhanced representation of the religious community of Alevis and the ethnic minority of Kurds in Turkish politics. Alevis and Kurds respresent approximately one third of the total population, Yet their religion and ethnicity are not recognized by the state. Kurds raised the complaint that the 10% threshold in parliamentary elections prevents the Kurdish parties from gaining seats.57 The 10% national threshold for obtaining seats in parliament remains the highest among Council of Europe member states.58 There was no progress on removing administrative tutelage and allowing the use of languages other than Turkish in the provision of public services as recommended by the Council of Europes Congress of Local and Regional Authorities. () Despite several nonprosecution and acquittal decisions, judicial proceedings against mayors and municipal councils for the use of languages other than Turkish in the provision of services were reported. In

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Morton Abramowitz and Henry J. Barkey: Turkeys Transformers. The AKP Sees Big. Foreign Affairs, November/ December 2009. Trkisch-kurdischer Konflikt eskaliert. Nach schweren Gefechten nimmt der Druck auf die Regierung zu. Neue Zrcher Zeitung, October 6, 2008. Stieger, Cyrill: Die Justiz als politische Waffe der Kemalisten in der Trkei. Entscheidende Phase im Machtkampf zwischen der alten Elite und Erdogans Regierungspartei. Neue Zrcher Zeitung, May 10, 2008. Strategie und der EU-Beitritt der Trkei. Eher sicherheitspolitische Nachteile fr die Europische Union. Neue Zrcher Zeitung, March 27, 2007. Verhandlungsrahmen der EU fr die Trkei. Die Brsseler Kommission hlt am Beitrittsziel fest. Neue Zrcher Zeitung, June 30, 2005. Sarah Seeger and Richard Probst: Staatskrise in der Trkei verhindert. Offene Fragen bleiben. Center for Applied Policy Research, August 1, 2008. Erdogan bekrftigt EU-Kurs der Trkei. Neue Zrcher Zeitung, September 1, 2007. European Commission, Turkey 2012 Progress Report, 19. Trkische Gladiatoren und Prgelknaben. Ankara vor schwierigen Forderungen der EU. Neue Zrcher Zeitung, June 30, 2006. European Commission (2012) p. 9.

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January 2012 the Chief of General Staff criticized the use of the Kurdish language in public education.59 Full respect for and protection of language, culture and fundamental rights in accordance with European standards have yet to be achieved. A comprehensive approach and further efforts are needed to enhance tolerance, security and promote inclusiveness vis--vis minorities.60 In Turkey there still exist significant deficiencies in the sectors of freedom of expression and civil rights. Despite same progress, both the rights of Kurds and those of religious minorities are constrained, the annual reports of the EU Commission have repeatedly stated. According to Brussels, Turkey is still far away from accession. In the EUs opinion, the Turkish military commanded an undue political influence because it had intervened in the Kurdish question and in the issue of laicit in politics.61 IX. The State of the Kurdish Question Since taking office in 2002, Erdoans AKP has been striving for a more democratic and modern nation throush the solution of the biggest domestic challenge: the political, legal, and economic equality of 14 million Kurds. The push for democracy should offer the Kurds certain individual and cultural freedoms in the hope of ending the decades-long insurgency of the PKK.62 However, the military action against the PKK and the culture wars between the old secular establishment and the Islamists has put a strain on the relations between Ankara and Brussels. This infighting has menaced not only the reforms of the AKP

government, but beyond that the newly-won international prestige of Turkey.63 The five years of cease-fire from 1999 to 2004 made an economic boom possible in Turkey. Its impact was mainly confined to the west of Anatolia; the Kurdish East did not climb out of poverty.64 The armys intervention in Turkish politics and the war on terror clouded the EU accession bid. Some were apprenensive of a new civil war, fought at the expense of both the Kurdish population and the Turkish economy. A political rearrangement such as concessions to Kurdish autonomy appear to Turkish nationalists and the military as high treason. Their motto is that Turkey will defeat the terrorists at any price. Democracy and minority rights should not serve to break up the Kemalist nation state.65 Mr Erdogans Kurdish opening, marked by the launch of Turkeys first state-run Kurdish-language television channel last year, was a fresh effort to woo the Kurds. And what about the mass arrests of 1,500 BDP officials, including elected mayors? Turkey insists that many were PKK operatives trying to establish a parallel state in the Kurdish region.66 It is up to the government in Ankara to create the political and economic premises for a lasting agreement with the Kurds. The war on terror requires in the first instance a political solution and not a military one. The AKP should provide human rights, democracy, and the rule of law in its EU accession bid.67 Contradictorily Turkey used active diplomacy to get elected into the UN-Security Council and the G20 in order to play a visible role as mediator in international disputes while neglecting the peaceful solution of the Kurdish question.68

59 60 61 62 63

64

65

66

67 68

Ibid., pp. 11-12. Ibid., p. 32. Kritik an Reformtempo. EU prangert Ehrenmorde und Folter in Trkei an. Spiegel Online, October 14, 2009. Normen und Werte im west-stlichen Diwan. Neue Zrcher Zeitung, 8 October 2005. Steven A. Cook: Turkeys War at Home. Survival: Global Politics and Strategy, vol. 51, no. 5, October-November 2009, pp. 105-120. Turkey is divided in modern and archaic zones that intermingle and penetrate each other. In the western cities industrialization is well advanced. But wide parts of the east persevere until today in an antiquated agrarian feudalism. The aas, rulers of villages and districts are heretofore reluctant to change and progress. Normen und Werte im west-stlichen Diwan. Neue Zrcher Zeitung, October 8, 2005. Andres Wysling: Terroristen und Generle stren den Fortschritt der Trkei. Neue Zrcher Zeitung, September 3, 2006. Turkey and the PKK . A never-ending fight. The Turkish army continues its long battle with Kurdish rebels. The Economist, May 20, 2010. Wysling (2006). Henri J. Barkey: Turkeys Moment of Inflection. Survival: Global Politics and Strategy, vol. 52, no. 3, June-July 2010, pp. 39-50.

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A negotiated solution to the Kurdish problem69 could see by a reform of the Turkish constitution, authorizing the creation of an administrative autonomy in the Kurdish region (bilingual education, local finance), which would be far off from dividing the territorial integrity of Turkey, and would rather consolidate the state: defeating both the increasing Turkish nationalism and Kurdish militancy.70 The Kurdish conflict is one of the most sensitive issues in Turkish politics because it has often been violent. As a result, successive Turkish governments have sought largely nondemocratic solutions to the challenge that Kurdish political, social, and cultural consciousness is perceived to pose to the security and integrity of the Turkish state. () With the armed forces now less of a factor in Turkish politics, a major obstacle to a political solution for the Kurdish problem has been removed.71 As far as domestic politics is concerned, the AKP administration faces the challenges of the Kurdish issue and the reordering of the civil-military relationship. If Erdoan takes on these challenges and solves them, this will remove the obstacles to EU accession and the economic boom will continue. On the contrary, his failure would trigger nationalism and autocracy, causing violence against minorities and leading to the political instability of the 1990s. Beside external factors, such as the EU requirements and globalization, the civic society must defy the omnipotence of the Turkish apparatus of state (the deep state).72 The vast linkage between security forces, politicians, and right-wing extremists should be unveiled in order to find the perpetrators of thousands of extra-legal killings of Kurdish lawmakers, human rights advocates, and rebels. The responsible officials of the deep state should be brought to justice. The European Commission laments:

There is no comprehensive approach to missing persons, the exhumation of mass graves or thorough and independent investigations into alleged cases of extrajudicial killings by security and law enforcement officers. Mass graves discovered in the south-east have not been adequately investigated.73 There was no progress towards a solution as regards the Kurdish issue. () The truth about extra-judicial killings and torture in the south-east in the 1980s and 1990s has yet to be established following the due process of law. The statute of limitations deadline will soon bring an end to judicial investigations on past crimes, without result. Landmines and the village guard system are still causes for concern.74 In a state where Kurds were not long ago imprisoned for listening to music in their native language and were named mountain Turks to prevent any mentioning of their origin, Turkey now allows the teaching of Kurdish75 in private schools.76 Prime Minister Erdoan had initiated an unprecedented reform process in 2009 by relaxing the cultural oppression of Kurds. The so-called Kurdish opening has stalled since then. In the meantime, the fronts are almost as hardened as in the 1990s. Thousands of Kurdish civilians have been were detained because of alleged links to the PKKs urban wing (KCK). At the same time, Erdoan demanded legal action against Kurdish parliamentarians that had met the rebels in the border region.77 If Turkey would only grant its 14m Kurds some of the rights enjoyed by their cousins in Iraq, the PKK would surely lose its appeal. The trouble is that, buoyed by the Arab spring, the regions 30m Kurds are increasingly look

69

70 71 72 73 74 75

76 77

More recently, prosecutors have used their sweeping authority to detain thousands of Kurds for allegedly supporting terrorist activities to promote an independent state; imprison military officers, academics and journalists on charges that they sought to overthrow Erdogan; and go after students, unions and other demonstrators who spoke out against the government. Emre Peker: Turkeys Bid to Revamp Constitution Falters. The Wall Street Journal, October 16, 2012. Philippe Boulanger: Turquie: une autonomie pour les Kurdes? Le Monde, June 3, 2010. Albright, Hadley and Cook (2012) pp. 27- 28. Barkey (2010). European Commission (2012) p. 20. Ibid., p. 34. The Turkish government, seeking to defuse a potential crisis over an eight-week hunger strike by hundreds of imprisoned Kurds, said it would propose legislation to allow the use of Kurdish language in courts if the prisoners abandoned their protest. Ayla Albayrak: To Cool Protest, Turkey Set to Allow Kurdish in Courts. The Wall Street Journal, November 6, 2012. Anthony Faiola: Turkey Confronts a Resurgent Kurdish Threat. The Washington Post, November 25, 2012. Inga Rogg: Im Teufelskreis der Gewalt. Neue Zrcher Zeitung, September 11, 2012. www.nzz.ch/aktuell/international/im-teufelskreis-der-gewalt-1.17591569 (accessed January 3, 2013).

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ing beyond their own borders towards an independent state uniting them all.78 Although the AKP is dependent on Kurdish votes in parliament to gain the two-thirds majority needed to pass a new constitution. Turkeys pro-Kurdish party, the BDP, will only consent if its demands for armistice with the PKK and administrative autonomy in the southeast are met.79 The AKP realized this when it put the Kurdish opening on its agenda. It planned to pardon PKK militants who renounced violence.80 The U.S. should support rejuvenated efforts to find an acceptable solution on an amnesty for Kurdish militants, to establish the right of Kurds to be educated in their own language, and to provide greater autonomy for the Kurdish region of Turkey.81 Furthermore, the International Crisis Group recommends that Prime Minister Recep Tayyip Erdoan should seize the opportunity to champion democratic reforms that would meet its international commitments to protection of minority rights, freedom of expression and access to a fair trial without extended periods of pre-trial detention. () Above all, politicians on all sides must legalize the rights most of Turkeys Kurds seek, including mother-language education; an end to discriminatory laws; fair political representation; and the lowering of national election thresholds, more decentralized local government and removal of discriminatory ethnic bias in the constitution and laws.82 The administration is in dialogue with PKK chief Abdullah calan, aiming for the disarmament of the organization. However, the pro-Kurdish BDP unlike Sinn Fein in Northern Ireland is not involved in the negotiations but is confronting the AKPs efforts to lift the immunity of ten of its parliamentarians be-

fore of showing their approval of the PKK. Nonetheless, observers on both sides accept (...) that the demands regarding political rights and Kurdish identity, such as the right to Kurdish-language education and greater degree of self-government, should also be addressed to reach a solution.83 Meghan OSullivan urges policy makers in the U.S. and Europe () to set aside their traditional way of viewing the world exclusively as a collection of nation-states; recognize the possibilities and risks behind Kurdish empowerment; and craft a strategy to encourage this pro-Western population to gain more influence in the region without provoking a backlash.84 The PKK said last September it was suspending pullout from Turkey into bases in northern Iraq, arguing Erdogans government had not made good on promises to enact reforms to improve Kurdish rights.85 Moreover, Turkey cannot act as a pioneer of Islamic democracy without recognizing that extreme force, deportations, and ethnic cleansing have built the Turkish Republic. Denying past crimes against humanity not only thwarts democratization but also reconciliation between the ethnic and religious communities. By admitting the mass murder of Armenians and the atrocities against Kurds and Alevi, Turkey may play the role in the field of human rights that she aspires to.86 X. Conclusion Since the end of the military dictatorship87 more than thirty years have passed yet the process of democratization in Turkey has still not been completed. The 1982 constitution remains for many a strict framework: The focus of that Constitution is set on preserving the integrity of the state, allowing for a wide application of laws against terrorism and organized crime, thus limiting basic rights and freedoms, citizens and politicians say.88

78 79 80 81 82

83 84 85 86 87

88

Turkeys Kurds Violent Times. The Economist, August 18, 2012. Meghan L. OSullivan: Kurds May Lead the Way for the Arab Spring. Bloomberg View Columns, June 16, 2011. Andrew Finkel: Kurds and the (Turkish) Way. The International Herald Tribune, September 5, 2012. OSullivan (2011). Turkey: The PKK and a Kurdish Settlement. The International Crisis Group. Europe Report N 219, September 11, 2012. Jake Hess: Turkeys PKK Talks . Foreign Policy, 8 January 2013. OSullivan (2011). Turkey unveils set of reforms, some aimed at reconciliation with Kurds. Washington Post, September 30. 2013. Taner Akcam: Turkeys Human Rights Hypocrisy. The New York Times, July 19, 2012. The referendum on the constitution asked for the repeal of the protection against prosecution of the general staff that had orchestrated the military coup in 1982. As a historical move the junta chief Kenan Evren and one of his fellow generals were put on trial. Didem Aydin: Die Neue Verfassung der Trkei: Zwischen Skepsis und Hoffnung. Lnderbericht Trkei. Konrad-Adenauer-Stiftung, April 25, 2012. Peker (2012).

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Before the election on June 12, 2011, the administration had already announced that one of its most important purposes would be the draft of a new constitution. The legislative aim would be to replace the 1982 constitution with a new, civil, and democratic constitution. Basic rights, minority rights, and cultural rights were denied by the 1982 charter, which did not guarantee the protection of civil rights but rather created the structure for their constraint. The constitution can help establish the proper relationship between military and civilian authority enshrining respect for the military but keeping the government under civilian control, free from military tutelage.89 In this context, the perspective of EU membership for Turkey and the relations with Europe play an important role.90 According to the European Parliament, in order to comply to European requirements it is inevitable that the 1982 constitution will be put out of force and be replaced with the participation of the civil society and the general public by a new, modern, and democratic constitution that safeguards the rule of law, basic rights, and European fundamentals of democracy.91 In this sense the European Commission demands that the new constitution should cement the stability of institutions guaranteeing democracy, the rule of law, human rights and respect for and the protection of minorities and address longstanding problems, in particular the Kurdish issue. 92 The Turkish constitution was not enacted to protect the rights and liberties of the citizens but rather to defend the repressive state against its subjects, whom the military legislators in their Hobbesian thinking mistrusted and feared. Consequently, the rights and freedoms were restricted as far as possible. Turkey is now transitioning from semiauthoritarian politics to a new political order.93

Can the AKP lead the change, or will its Islamist past prevent it from introducing a new and democratic constitution guaranteeing civil rights and liberties to its religious and ethnic minorities? The Committee to Protect Journalists zoned in on how arcane Turkish criminal procedures of the anti-terror law, ease the prosecution of journalists, while many are subjected to long periods of pretrial detention. Around twothirds of the total in jail were journalists writing about the predominantly Kurdish southeast.94 Dozens of journalists are in jail, prompting a media watchdog, the Paris-based Reporters Without Borders, to describe the country this month as the worlds biggest prison for journalists.95 Steven Cook stresses that the US welcomes the reforms of the AKP and encourages the strengthening of Turkish democracy under a new constitution, creating a liberal state in which individual and political freedoms are fully granted. Otherwise, Erdoan will be remembered as a prime minister who managed an economic boom and designed a new foreign policy, but on domestic politics eventually failed to convert Turkey to a fully democratic polity.96 Maintaining a spirit of compromise and ensuring the broadest possible consultation remain key for the legitimacy of a new constitution. Further progress in implementing the 2010 constitutional amendments has been limited. Work on political reforms and the parliaments ability to perform its key functions of law-making and oversight of the executive continues to be hampered by the persistent lack of dialogue and spirit of compromise among political parties.97 As an Islamic-conservative party, the AKP meets the approval of the Muslim world in its process of democratization for EU membership despite the current stalemate. Gnl Tol

89 90 91 92 93 94 95

96 97

Albright, Hadley and Cook (2012) p. 25. Aydin (2012) p. 2. Hartmut Hausmann: Fortschritte der Trkei auf dem Weg zur EU. Neue Zrcher Zeitung, June 5, 2003. European Commission (2012) p. 8. Steven A. Cook: Constitutional Stakes in Turkeys Election. Council on Foreign Relations, June 10, 2011. Ayla Albayrak: Watchdog Slams Turkeys Press Freedom. The Wall Street Journal, October 22, 2012. Opposition Turkish Journalist Released from Jail Pending Trial on Coup Plot Charges. The Associated Press, December 27, 2012. Cook (2012). European Commission (2012) p .8.

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points out that Islam is compatible with democracy, concluding that the stalled negotiations with the EU might damage Turkeys influence in her region.98 As the protests of Gezi Park have demonstrated, civil society in Turkey mostly young reform-minded and secular Turks from the middle class is vibrant, and upset with the authoritarian tendencies of Prime Minister Erdoan and his government. The brutal clashes between peaceful protesters and riot police have evoked Turkeys undemocratic past. One can only hope that the international community, particularly the EU, will uphold pressure on Ankara to comply to international human rights standards in the freedoms of expression and assembly. One can only hope that the civic protests will force the AKP administration to abandon its unwillingness to fulfil the EU criteria so that the stalled negotiations will continue and further chapters opened.99 Initially on September 30, the AKP leader introduced, a new reform package, the socalled Democracy Package. Western media focused on the lifting of the headscarf ban in public institutions and for state employees.100 With regard to minority and religious rights, the reforms failed to convince the affected parties: Kurds, Alevi and Greek-Orthodox communities. The right to mother tongue education in private schools, the free use of the letters q, w and x, and the right to rename their towns and villages to their old Kurdish names were granted to the Kurdish minority.101 However there was no talk on granting amnesty to thousands of Kurdish activists in Turkish imprisonment for peaceful protests, talking in Kurdish or writing on the Kurdish question, nor were there any concessions made to Alevi concerning their demands for the legal recognition of their religious sites and spiritual leaders. Alevi pupils are still forced to attend classes on Sunni religion. While the Syriacs got the lands back around

their ancient site of Mor Gabriel, the Greek Orthodox Church was not allowed to reopen its seminary at Hebeliada.102 The reforms stopped short of some expectations. Erdogan had been expected, for instance, to announce the reopening of the Halki Greek Orthodox seminary in Istanbul, which was closed by Turkish authorities more than 40 years ago. U.S. lawmakers and the European Union, which is pressing Turkey to improve religious rights, have called on the Turkish government to allow the seminary to reopen.103 To sum up, we may say that Kurds, Alevi and Orthodox citizens were once again disappointed by the Turkish state. After great acclamation by the AKP and fierce resistance from the neofascist MHP, the Erdoan administration used delaying tactics to postpone the process of democratization in Turkey. Instead of lowering the electoral threshold immediately to 7 or 5%, the Prime Minister opened an infinite debate on the size of parliamentary constituencies, whereby he reaffirmed the validity of the 10% threshold in national elections. In addition, neither the European Commission nor the ethnic and religious minorities were convinced by the AKPs longawaited proclamation. The reforms suffered a setback by the Islamists rejection of greater participatory rights for the minorities in Turkish politics. In the end, the abolition of both the freedom-averse anti-terror legislation and the criminal code was not even mentioned by Erdoan; this does not augur well for the anticipated new Turkish constitution. In order to overcame obstacles in its domestic politics and in its foreign policy, the Islamic-conservative government must proceed with the project of democratization and encourage its neighbors to follow the path to peace, stability, and prosperity in the words of Mustafa Kemal Peace at home, peace abroad.

98 99

100 101 102

103

Gnl Tol: The Turkish Model in the Middle East. Middle East Institute, December 14, 2012. Marc Pierini: The International Fallout from the Gezi Crisis. Carnegie Europe. Judy Dempseys Strategic Europe. June 11, 2013. Erdogan-Vorsto: Trkische Staatsbedienstete drfen Kopftuch tragen. Spiegel Online, September 30, 2013. Erdogan fait un geste pour les droits des Kurdes. Libration, September 30, 2013. Ayla Albayrak: Turkeys long-awaited Democracy Package: The Rundown. Wall Street Journal, September 30. 2013. Turkey announces reforms aimed at promoting peace with Kurds. Los Angeles Times ,September 30. 2013.

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