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Examining Diplomatic Immunity: Can Turkish Consulates Engaged in Crimes Against Humanity Evade Justice?

Dr. YAŞAR DEMİRCİOĞLU*

The AKP regime’s use of mafia-like methods, contrary to the principles set out in universal human rights documents, such as “forced disappearance, kidnapping, profiling, and espionage” in other countries, and the involvement of consulates in these illegal actions raise questions about whether Turkish Consulates can benefit limitlessly from diplomatic immunity and judicial immunity principles.

In a recent document published by Nordic Monitor, it was documented that the Turkish Consulate played an active role in the case of Koray Vural, a Turkish businessman who was forcibly kidnapped from Tajikistan by Turkish intelligence. This revelation leads to questions about whether individuals involved in crimes against humanity can benefit from diplomatic immunity status and what legal actions can be taken against them. Moreover, Turkey’s recent record of forced disappearances in countries like Kosovo, Northern Iraq, Ukraine, Azerbaijan, Pakistan, Malaysia, and Kyrgyzstan demonstrates the systematic determination of the state and government in committing crimes against humanity.

According to the United Nations International Convention for the Protection of All Persons from Enforced Disappearance, “forced disappearance” is considered a crime against humanity. The same international convention defines “Enforced Disappearance” as any act by state officials or by persons or groups of persons acting with the authorization, support, or acquiescence of the state, followed by a refusal to acknowledge the deprivation of liberty or by concealment of the fate or whereabouts of the disappeared person, which place such a person outside the protection of the law. It is noteworthy that Turkey has not yet become a party to this convention despite the widespread and systematic use of enforced disappearances.

The Turkish state has not only used consulates as criminal mechanisms in third-rate democracies where democratic values have not been established, such as Pakistan, Tajikistan, Azerbaijan, or Kosovo, but also in democratic countries like Germany, contrary to diplomatic principles and values. In fact, according to domestic intelligence reports in Germany, Turkey is listed among the countries with the highest espionage activities within the country, along with China, Russia, and Iran. This trend aligns with the increasing authoritarianism under the Erdogan government since 2016, which is paralleled by other European countries. In authoritarian regimes, like all other organs of the state, consulates enjoying judicial immunity and immunity from foreign courts are forced to engage in criminal activities and regime crimes abroad. Many Turkish Consulates in Germany are known to conduct espionage activities against Erdogan opponents, gather information within Germany, and relay it to Turkish police and intelligence units, as the German courts are aware.

According to a report by Nordic Monitor, Turkish businessman Koray Vural, who has resided in Tajikistan for 29 years, was abducted by the Turkish National Intelligence Organization (MİT) and brought to Turkey on September 16. All indications suggest that the Turkish Ambassador to Tajikistan and diplomats played an active role in organizing this kidnapping.

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Diplomatic immunity is a privilege obtained solely through diplomatic relations and in accordance with the principles set out in the International Vienna Convention. It is impossible for consulates that engage in these illegal actions, especially crimes against humanity such as enforced disappearance, that are contrary to their duties and authorities, to benefit absolutely from judicial immunity and immunity.

In this regard, a decision previously made by the German Federal Constitutional Court regarding former dictator Augusto Pinochet is quite significant. In its 1997 decision, the German Federal Constitutional Court made important determinations regarding the legal responsibility of a consulate employee of a third country located in former East Germany involved in illegal activities against West Germany before the reunification of the two Germanys. When it was determined that the Ambassador of a third country in former East Germany was involved in a bombing attack in West Germany before the reunification of the two Germanys, the issue of diplomatic immunity became a topic of discussion again due to the subsequent arrest of the (former) Ambassador years later.

The summary of the incident that came before the Federal Constitutional Court is as follows: In a bombing attack in West Germany in 1983, the Ambassador of a third country in former East Germany was found to have been involved in the attack. Bombing perpetrators stayed in the Embassy Building in East Germany and, with the Ambassador’s knowledge, carried out the bombing attack within the borders of West Germany from there. The Federal Constitutional Court made important determinations regarding diplomatic immunity, foreign countries’ immunity from prosecution, and the limits of diplomatic missions when evaluating the legal assessment of the incident.

The question being sought here is whether consulate employees benefiting from diplomatic immunity can be subject to legal or criminal liability after the end of their terms, especially for actions that do not relate to consulate duties and powers but constitute crimes, such as enforced disappearances. According to the German Federal Constitutional Court, the principle that immunity for official actions continues even after leaving the post is based on the understanding that the privilege for official actions must be attributed to the sender state (i.e., the immunity of the sending country’s judiciary). However, the understanding that lasting immunity for official acts is in effect for crimes such as enforced disappearances, war crimes, crimes against humanity, and acts related to international terrorism, especially when it comes to the violation of minimum human rights standards, is gaining more and more support in international law.

In the Pinochet case, the judges argued that Senator Pinochet’s immunity came to an end not only because he was no longer a head of state but also because crimes that constitute acts of an individual benefitting only his private pleasures or personal gain. Additionally, it was underlined that there is no distinction between whether the crimes occur domestically or internationally.

Since the Turkish state turned into an authoritarian structure after 2016, it is clearly seen that Turkish Consulates abroad have lost their mission as representatives of humanitarian law aimed at the continuation of peace and bilateral relations, contrary to the basic principles set out in the International Vienna Convention. These consulates have now turned into joint perpetrators of actions such as espionage, surveillance of opposition figures, obtaining personal information, and spying, which are crimes even in the host country. It would be appropriate for consulate employees to act with the awareness that these actions, which are incompatible with their duties and authorities and do not fall within the scope of diplomatic immunity, may be subject to prosecution anywhere in the world after the end of their term.

*Dr. Yasar Demircioglu is an expert in international law, justice, and human rights, currently based in Berlin.

This article originally appeared on TR724.com in Turkish and has been translated into English by Politurco.

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