Article by Yasir Gökçe
The Pakistani Supreme Court recently declared a group running secular educational institutions in Pakistan a terrorist organization and ordered the educational institutions be handed over to the Maarif Foundation, an apparatus of the Erdogan regime which is purportedly responsible for providing Turkish-style education around the world.
The group which previously administered the educational institutions is linked to the Gülen Movement, a social and religious group which has incrementally gone critical to the Erdogan regime and thus been pronounced ‘a terrorist organization’ by the latter.
What makes the Pakistani Supreme Court’s ruling worthy of attention is, an authoritarian country was able to dictate its perception of threat, and the designations which follow that perception on a foreign country using international and regional organizations. In pronouncing the said group a proscribed organization, the Supreme Court did not make an inquiry into the group, or the acts of its members whatsoever. Rather it simply relied on the resolutions adopted by the Organization of Islamic Cooperation (OIC), the Gulf Cooperation Council (GCC) and the Asian Parliamentary Assembly (ASA). The Erdogan regime’s relentless efforts to get these political bodies to recognize the Gülen Movement as a terrorist organization paid off and the regime has managed to obtain resolutions which use “the Gülen Movement” and “terrorism” within the same sentence.
This piece aims to address the legality issue of the designation of an entity as a terrorist organization by interstate political bodies. It also draws attention to the danger of an authoritarian regime exerting influence on these bodies to further its persecution at home and abroad.
Jurisprudence of the European Court Justice on ‘terrorist’ designation
The illegality of identification of a person or an entity as of terrorist nature by an international organization is hardly a new subject in international law. One of the most visible cases of the European Court of Justice, namely the Kadi case, revolves around this subject and comes up with a clear framework of analysis which we can apply to the issue in question.
In the UN Security Council (UNSC), Mr. Kadi was identified as a possible supporter of Al-Qaida and thereby subjected to a number of sanctions, particularly assets freeze. Mr. Kadi challenged the legality of this resolution before the European Court of Justice. Debates over the competence of the European Court to review a UNSC measure aside, the Court examined the UNSC’s compliance with the fundamental guarantees of judicial protection and found that Mr. Kadi’s inclusion in the list of individuals subject to the sanctions infringed those guarantees.
The Court established that Mr. Kadi had not been informed of the grounds for his inclusion in the so-called ‘terrorists’ list and therefore, concluded that his right to be heard, his right to effective judicial review, and his right to property had been violated.
In 2008, the UNSC has begun to publish, along with the list, a reasoning which summarizes the main grounds for an inclusion in the list. Mr. Kadi was given the opportunity to inform himself of the main grounds for his inclusion in the list and comment on those grounds before the Sanctions Committee of the UNSC. Even this step has not satisfied the European Court, finding this mechanism ‘formalistic and superficial’.
Returning back to the designation of the Gülen Movement as a terrorist entity by the OIC, GCC and APA, the Pakistani Supreme Court was granted a vital opportunity to promote the right to a fair trial, however it has failed to uphold the very basic guarantees of judicial protection. In the resolutions of the OIC, GCC and APA, neither representatives of the Movement nor its followers had not been informed of any reasons as to why they were declared terrorists. They were not offered any procedures or mechanisms through which they could challenge the allegations vehemently voiced by the Erdogan regime. As a natural extension of these notable deficits, they were not able to seek judicial review of such a designation and access the evidence, if any, against them.
Here it is worthwhile to note that Mr. Gülen, a self-exiled Turkish cleric who leads the Movement, called for an international investigation into the matter, which, if materialized, could have been functioned as a quasi-judicial mechanism and secured the aforementioned guarantees of judicial protection. All invitations by Mr. Gülen for an objective and transparent investigation have so far been ignored by both the Erdogan regime and other like minded states.
In the face of the analysis above, it would be pertinent to advance that the resolutions of OIC, GCC and APA designating the Movement as a terrorist entity infringed the affected individuals’ right to a fair trial, as well as their right to be heard and right to effective judicial review.
Diplomatic interests vs. human rights concerns
As is the case for almost all international/regional organizations, OIC, GCC and APA are platforms where the participant states represent their respective national interests and try to enhance their respective diplomatic gains together with those of the other participants’ and sometimes at the expense of their losses.
It appears that the resolutions of OIC, GCC and APA on the Gülen Movement are not immune from this truism. In the face of President Erdogan who is committed to use every chance he get to hurt the Movement, other member states, for sake of their diplomatic or financial gains, might have been prone to approve whatever text being put in front of themselves. Given the human rights records of the member states, this would not be a deduction devoid of any basis.
Another point which accords some credit to the presumption above is the extent to which the resolutions of OIC, GCC and APA are binding on the member states. When the founding charters of the organizations are examined, one would observe that, in contrast to the terms such as “require”, “shall” or “undertake”, the texts contain phrases such as “wishes”, “may” or “recommends”, which are peculiar to non-binding instruments. For instance, the executive parts of the resolution adopted by the OIC are as follows:
“Declares its full solidarity with the Government and people of Turkey in its fight against Fethullah Terrorist Organization to ensure democracy, justice, security and unity,
Calls on Member States to take every necessary measure against the entities and groups, manned or directed by Turkish nationals, affiliated with the Fethullah Terrorist Organization and cooperate with Turkey to this end”
The preference of the phrases in the text, which are typically reserved for non-binding instruments, suggests that the resolution places no legally binding obligation on the signatories. One of the reasoning of the Pakistani Supreme Court is, Pakistan being a member of the OIC is a signatory of the resolution and is therefore bounded by it. In the light of the aforesaid, it is fair to set forth that the Supreme Court has failed to appreciate the non-binding character of the resolutions.
Repudiation of the resolutions for the sake of long-term interests
Most states have their own national threats, either perceived or real. That of the Erdogan regime is inter alia the Gülen movement for the time being due to its convenience to being a scapegoat for anything bad occurring in Turkey, from the Turkish Lira’s depreciation to earthquakes which stroke various Turkish cities.
The Erdogan regime has proved successful in moving its counterparts in OIC, GCC or APA to sign the resolutions by capitalizing on its diplomatic relations or any other leverage or incentive. Consequently, Turkey’s counterparts in those bodies seem to have succumbed to the Erdogan regime’s diplomatic maneuvers.
But, it is still possible for the domestic judiciary of the signatory states to right the wrongs of the executives. Overlooking the human rights ramifications, the respective governments might have put their signatures on the resolutions. However, as the language of the texts suggests, those resolutions do not impose any legal obligations upon the states whatsoever.
Additionally, if the courts, in any case, feel obliged to follow any of the GCC or OIC instruments, it should be the GCC Human Rights Declaration or the OIC Cairo Declaration on Human Rights whose basic principles stand in contrast with the very essence of the resolutions in question.
In the final analysis, the signatory states and their courts had better decide where their loyalty lie. With the authoritarian Erdogan regime or with the human rights and judicial guarantees solemnly enshrined in their respective constitutions?
About the Author:
Yasir Gökçe is currently a Ph.D. student in the Bucerius Law School in Hamburg. 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.