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When We Hit the The Limits of Transnational Justice

Işıl Kurnaz*

On the night of December 28, 2011, 34 civilians lost their lives as a result of the bombing by F16 fighter jets belonging to the air force in the village of Robozkê (Roboski), located in the Uludere district of Şırnak. Among the 34 people, 28 were members of the same family, the Encü family. The General Staff Headquarters stated that the operation was carried out because the group was using the PKK’s route. After it was understood that the victims were civilians, Deputy Prime Minister Bülent Arınç mentioned that it was “wrong” to expect an official apology and stated that compensation would be paid to the families of the killed civilians. Compensation as a monetary replacement for human lives… The Constitutional Court rejected the application related to this massacre due to lawyers submitting the documents two days late. The case was taken to the European Court of Human Rights (ECHR). The ECHR, repeating the grounds for rejection by the Constitutional Court, refused to review the case, citing the non-exhaustion of domestic legal remedies.

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International justice mechanisms are often thought of as the places where universal principles of human rights law are embodied. Problems are referred there. In a region where the state does not deign to respect human rights, let alone engage with human rights defenders but rather targets them, the idea that there is a higher authority that listens and sees, perhaps triggers the struggle to some extent. However, international justice mechanisms sometimes become the sore spot of those very struggles for human rights that they were established for. You realize that even the place you can reach with great effort, away from the state’s disregard, is a kind of shadowboxing, a relationship between the state and the international court like a staged fight, a bit like a poison-antidote relationship. One cannot exist without the other, so a symbiotic resemblance is formed between them. Official visits, relationships, projects all confirm this. You collide with other bureaucracies, diplomacies, obstacles, which are not much different from the state’s institutional structure. Because ultimately, one is the raison d’être of the other.

Dilek Kurban’s book, ” Ulusaşırı Adaletin Sınırları” (The Limits of Transnational Justice), just released by İletişim Yayınları (Iletisim Publishing), actually tells this collision. It tells us that the courtroom door cannot always be the final destination of justice, that the law overflows from there, and that it needs to be mobilized precisely from that place where it overflows. When we see transnational justice, that is, international human rights mechanisms, not as a final stop but only as a transit point, we can move the struggle to another place, it tells us. Because even in these courts, the groundbreaking decisions we think have been taken for human rights and that serve as precedents do not arise from the courts’ hunger for human rights. On the contrary, it arises from that determination of those who engage in organized struggle and do not refrain from legal mobilization. None of those decisions are owned by the state that admits to violating human rights, if necessary, enforces that decision, and pays that compensation. Similarly, it is not the international courts that condemn that state, sometimes naming human rights violations. The owner of that decision is the very determination itself.

Do you remember that during the state of emergency declared due to the events of July 15th, which was extended seven times, more than thirty districts and towns had curfews declared between July 2015 and December 2016? The “Initiative Against Thought Crimes” renamed the period after the state of emergency and gave it the following name: It’s not a State of Emergency (OHAL), but a State of Permanent State of Emergency (SOHAL)! Applicants living in areas under curfew and the deputies of those provinces applied to the Constitutional Court for interim measures and for operations to be conducted in accordance with international legal standards. However, the Constitutional Court rejected their requests on the grounds that the applicants could not prove that they were in danger. The applications were later taken to the European Court of Human Rights (ECHR). The ECHR accepted the request for interim measures for only five out of the thirty-four applications, but Turkey, due to its delayed implementation of the ECHR’s instructions, resulted in the applicants passing away before they could go to the hospital.[1]

The boundary between national justice and transnational justice is not an impossibly distant one, if you think about it. When one door closes in your face, it is likely that the other will also close. Because what opens that door is not the high virtues of those institutions, their openness to human rights, but rather your determination in your struggle, which is politics.

Dilek Kurban explains the politics within transnational justice mechanisms and the politics of the actors within those mechanisms to some extent. Without allowing for a lack of technical legal assessment, she explains the dimensions of effective judicial review: “Supranational courts should use all the judicial tools and doctrines they have at their disposal to oversee state violence (from top to bottom) and be open to the mobilization of local human rights actors against the state violence in question (from bottom to top).”[2]

Being in the position of mere judicial tools speaks to the ineffectiveness of remedying human rights violations, Kurban is actually saying. Because the way to say “never again!” lies in activating all mechanisms simultaneously. Otherwise, purely bureaucratic mechanisms or legal immunities established will only create new violations. For example, you understand how the village guard system is used both by influential individuals in the region to deepen their dominance and to solidify their rule-breaking behavior through state officials. You also ensure that a judicial practice conducted solely through secret witnesses and informants guarantees these individuals the ability to accuse people they personally bear grudges against at the end of the day.[3] To understand the multi-dimensionality of the story, you need a multi-dimensional approach to the story. That’s why international or transnational justice mechanisms should be touched not only from the perspective of judicial practices but from a place where all actors are involved, where all emotions are mobilized. Therefore, Kurban’s approach to Turkey’s human rights practices is based on a broad framework without relying solely on statistics or limited empirical data. This framework is related to Turkey being a kind of “brown democracy” in O’Donnell’s approach, of course. In regimes that allow a minimal amount of political parties, minimal criticism, and minimal media outlets, even if it is constantly subjected to judicial harassment, the judiciary can become the cause of human rights violations at the same time.[4]

Charles Falconer, a lawyer and member of the House of Lords from the Labour Party in the UK, wrote in The Guardian about how leftist lawyers were portrayed as enemies of the people when helping immigrants. He stated that if the government attacks the credibility of the courts, judges’ confidence in taking action will decrease. A few days later, journalist Barış Pehlivan wrote that he had met a mafia member in prison who said that judges were the most important element in the mafia mechanism because they were needed to (not) be tried!

Dilek Kurban also touched on the dangers in these vicious circles of the judiciary, where once entered, it becomes a labyrinth from which one cannot exit. She went through the days of torment in the 90s when Kurdish lawyers mobilized, where there were no possibilities to strategically select cases because every case was vital and strategic. But on the other hand, she explained how the ECHR had become an automatic approval authority under the pretext of workload and principles, from a broader perspective. In other words, she was touching the seemingly untouchable institutions of international human rights law.[5]

The boundaries of human rights are, to some extent, drawn by states; that’s why Rancière was suggesting the staging of a dramaturgy designed in the legal method by the actors themselves.[6] Because each norm that creates law (jurisgenerative) is also jurispathic, meaning it pushes another possibility out of bounds, invalidating another norm. Therefore, the strategy of legal mobilization is, in essence, a method that knows no bounds when it comes to human rights. Because the main reason for Turkey’s participation in all international human rights mechanisms, including the ECHR, is not a deep sensitivity to human rights but politics itself. It is based largely on the desire to find a place even in a kind of European community of nations primarily shaped by EU membership, despite everything. This desire does not manifest itself from a principled standpoint of adopting these values; rather, it is more like a kind of ledger. It’s a place where debts are collected and deducted from the obligations of other states. Is it possible to say that the responses given by Europe to Turkey’s lawlessness, especially in the Kurdish region, under the state of emergency after 2016, had no impact on Turkey’s refugees? Just as the interstate case filed by five European states against Turkey for the intense torture and killings during the 1980 coup was resolved amicably at the ECHR based on the arguments of the government, it was somehow related to the railway tender that the Özal government promised to these states at the time.

“Uluslararası Adaletin Sınırları” (The Limits of International Justice), in my opinion, while telling the story of those boundaries, also tells how those boundaries are crossed by lawyers and human rights actors in the book. That’s why it actually says that what’s important is not those boundaries, but it invites us to see what happens when we hit those boundaries. Because you’re not just constantly hitting the border; you’re turning it into something else. To a point that can be crossed, to a bureaucracy that can be exposed, to a story where you can look back at your own path… In fact, you remember a very basic thing: what you call law is actually human stories. When you read it from there, the boundaries of legal articles extend far beyond, in my opinion, the meaning you imbue in the struggle. I prefer the sense of resistance that becomes boundless as you keep hitting it from one place to another, rather than the limits of international justice in this book. Because I leak the mobilization potential of law from that feeling.

[1] Dilek Kurban, “Ulusaşırı Adaletin Sınırları” (The Limits of International Justice), İletişim Yayınları, 2023, pp. 25-27.

[2] Ibid., p. 29.

[3] Ibid., pp. 73-85.

[4] Ibid., p. 31.

[5] Ibid., p. 272.

[6] J. Rancière, “A Few Remarks on the Method of Jacques Rancière,” Parallax, vol. 15, no. 3, pp. 114–123.

*Isil Kurnaz graduated with honors from Bilkent University Faculty of Law. She obtained a master’s degree in International Human Rights Law from Lund University with the Sweden Institute Human Rights Scholarship in memory of Anna Lindh, awarded by the Swedish government. She won the Halit Çelenk Law Award in 2018 for her thesis on “Collective Social Rights in Constitutions.” She is currently working as a doctoral researcher with a scholarship at the Human Rights Institute of Sant’Anna Scuola Universitaria Superiore Pisa in Italy. She also contributes regularly to the Birikim magazine.

This article initially was published in Birikim Magazine and translated into English by Politurco.

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