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Reidy: Statute of limitations should not be excuse for withholding justice

Mon 17, September 2012 Kategori Interview
As Turkey takes some groundbreaking steps towards holding the state accountable for the killings and disappearances in the mainly Kurdish-populated Southeast of the country that took place in the first half of the 1990s, a human rights expert has said that the Turkish government should remove the statute of limitations in order to pursue the goal of justice.
"The concern is that there will be an attempt not to deal with those cases, to try to sweep them under the carpet like it's been in the past, and in a few years' time the statute of limitations will become an excuse for inaction on these old cases,” said Aisling Reidy, a senior legal advisor at Human Rights Watch (HRW) for Monday Talk.

Reidy was in Turkey last week for the release of the HRW report "Time for Justice: Ending Impunity for Killings and Disappearances in 1990s Turkey,” which highlights problems in relation to the issue and opportunities for resolving them.

She defined the trial in relation to the unlawful killing of about 20 people in the country's Southeast of retired colonel Cemal Temizöz has been remarkable. Temizöz is a major suspect in relation to unsolved murders and disappearances committed in the Southeast in the 1990s. Three former members of the outlawed Kurdistan Workers' Party (PKK) turned informers and three members of the village guard (local paramilitary forces armed and directed by the gendarmerie) are also on trial in the same case. According to Reidy, however, these killings are just a tiny fraction of thousands of unsolved killings and disappearances that took place in the area in that period.

Answering our questions, she elaborated on the subject.

HRW has just released a report asking the Turkish government to address the state killings and disappearances. What are the most immediate concerns in that regard?

Extensive documentation of the domestic human rights commissions, parliamentary investigations and European Court decisions shows that in the last 17-18 years, very serious violations have taken place in the Southeast, and yet there has been a refusal to properly investigate them. Finally, with the Temizöz trial, we began to see an opportunity, a small opening in relation to the serious prosecution of people relating to about 20 disappeared persons. We've been also watching the situation of witnesses who are not very secure or frightened. In a couple of years' time, many cases will be time-barred for prosecution because there is be statute of limitations for investigation of just twenty years. Time is fast running out when you think that the highest number of killings and disappearances by suspected state perpetrators took place in the period 1993-95. So we really think that this is an opportunity for prosecutors who are taking these cases seriously. It is good that there are exhumations taking place, even if they have really been driven by the victims' relatives. We just didn't want this opportunity to go by, when we finally have a chance for justice. Recently, there has been a rise in violent clashes and deaths of Turkish security forces and PKK members. We are worried that people will use the situation of violence to derail efforts for justice. The concern is that there will be an attempt not to deal with those cases, to try to sweep them under the carpet like it's been in the past, and in a few years' time the statute of limitations will become an excuse for inaction on these old cases.

Would you tell us how you've become involved in the cases of disappearances in Southeast Turkey?

I was based at the University of Essex in the UK, at the human rights center there, and there was a former student who was a Kurdish Turk who had contacts in Turkey with the İHD [the Human Rights Association]. There was also late Professor Kevin Boyle, who famously left an application at the European Court of Human Rights absentmindedly, right beside a photocopier, and lawyers who had been working with the İHD decided to take the case to the European Court because they were getting no success domestically. I happened to be there at the time. We took three cases to the court to start something. That was in 1993. The Human Rights Association kept sending me files. Together with the lawyers in the Southeast, we worked on more than 100 cases. At the time, the European Court Commission, which existed from 1993-95, did not actually investigate the cases on site because both parties who brought the complaint to the court usually agreed on the facts but disagreed as to whether it was a violation, but in Turkey, they discovered that both sides gave very different stories. The people would say their relatives had disappeared, taken by the military, and the government would completely deny it. The classic response of the government would be to say that they would investigate, but then there would be no domestic investigation. In 1995, the Court sent a delegation to Turkey to conduct an investigation. Most of the lawyers in Southeast Turkey were in jail at the time. Osman Baydemir, at that time a lawyer, was working on some of those cases.

'So they are going to give me the bodies, right?'

What would the Turkish government's investigations look like at the time?

They would come up with answers which would not make sense. And then, over time, as they realized the court was going to find violations against them, they began to engage with the court. The court used to complain about lack of cooperation. There were many cases. Then there were some structural changes made in the Turkish justice system -- one example is that you had to get an administrative permission to investigate police or security forces, which they removed. The Turkish government ultimately paid compensation to the victims; but until very recently, 2009, we didn't see any movement on investigations, and that's frustrating, particularly on the cases of the disappeared.

Is there a case that has been etched into your memory?

There was a grandmother. Her son and grandson, both of them were taken away [by security forces]. She was an extremely feisty and strong woman who had gone all the way to Diyarbakır to find someone to complain to. And she came to Ankara to testify to the court. When we were telling her that she had won her case, that the court had held the government responsible for what was done, all she asked us was: "So they are going to give me the bodies, right?” And we said, "They are supposed to but we can't force them.” That's all she wanted; closure, like most people who have been involved in these cases do.

You also worked in other countries, in Kosovo too.

I worked in Kosovo. We were actually part of the exhumation process. This happened after I was working with the Kurdish cases, so I do remember it was strange to tell people, "Yes, we found your father, your son or your husband” -- and it was mainly men who disappeared in Kosovo -- so they could have funerals. There, you are giving people a kind of closure without the legal accountability, whereas in Turkey we are trying to give some legal accountability but without being able to give the body back to the families. It was really bad, unsatisfying. But it is really satisfying to think [in relation to the things that happened back in the 1990s in Turkey] there is a possibility for some of these people who went to European Court and got their judgment. That's really what counts for them -- information about what happened to their relatives and where their bodies are, and maybe even seeing somebody be held accountable for what happened.

'Village guard system -- a very intimidating factor'

These cases are hard cases, very emotional at the same time. For violations that are so serious, have there been any easy resolutions among the cases you've seen so far?

No, I don't think so. There are some cases, let's say detention cases, someone who had been ill-treated in detention and in custody. And if the system is working correctly, they can actually be quite easy to resolve. Because when somebody is taken to detention, you will have medical records when they have entered; forensic evidence may indicate whether they were already injured or not. But in situations like in the Southeast in the 1990s or in Chechnya -- another example from the region -- there is a problem of denial, which makes it very difficult. Sometimes the witnesses cannot talk, sometimes evidence is not preserved. But the court shows that even in that context, if you really have the political will, you can come in and you can follow basic investigations. You speak to witnesses who know things, you take the evidence, you follow up the leads that they give and you can begin to put together what is credible and what happened. They are not easy [cases] but it is quite possible to do. Look at the Latin American experience -- Peru, Colombia, Argentina and Guatemala -- you did go back 20-30 years. Surviving witnesses would not forget the things they had witnessed so you can get pretty incredible and detailed testimony if you are willing to go back to the witnesses. There are plenty of witnesses in the Southeast to various violations. You just have to be willing to listen to them and offer them a very secure environment to do that; it was a problem then, and it is a problem now.

What are some of the most recent examples in Turkey in relation to the security of the witnesses?

It is not as volatile as it was in the Southeast where there was the state of emergency. I understand from some of the press coverage related to the Temizöz trial on Friday that one of the witnesses expressed fear for his life outside the courtroom for what he was saying. We also see witnesses retracting statements; witnesses visited by some people who threaten them. And the village guard system continues to exist - a very intimidating factor. This is not unique to Turkey. Witnesses face pressures in other countries too. When I was working for International Criminal Tribunal for the Former Yugoslavia, we were asking for measures to protect the witnesses' identities -- giving them pseudonyms, not showing their faces in public, etc. There are ways of addressing it. Turkey has laws to protect witnesses. Witnesses need to get a signal that there is a political will to solve these cases and that this political will is going to translate into offering measures to protect witnesses who are willing to come forward and testify.

'Establishing truth commissions important'

Do you think the government has not been doing enough?

When you look at what the Turkish government has been doing, you hope that there is political will, because this is the first time that cases have been opened about the disappearances. But it is far too early to say that the political will is there. It is indispensable for this process to be successful, that there is political will, and they will see that this is beneficial in the long term for Turkey. There are positive signs that the government is going to go forward with these cases. I hope Turkey sees this as not an option but an obligation. This obligation will only get stronger over time. It's much better to solve the problems early, in an effective way, and look at the problems in relation to statute of limitations and witnesses. Turkey needs to be proactive. There is also the issue of massive displacement of people in the Southeast back in the 1990s. At one point, the number of people who have been displaced in Southeast Turkey was larger than the number of people who displaced in Bosnia-Herzegovina at the time of the civil war in the Balkans. In addition, beyond prosecution, it would be important to establish truth commissions through an agreement in Parliament. Of course things have changed in Turkey. People like Tahir Elçi, who was in prison and was tortured back in the 1990s, are now leading the way. He is one of those people, a lawyer, who represents victims in cases involving public officials as perpetrators of crimes.

You had recent meetings with senior officials in Ankara. What would you like to say about those meetings?

We had a number of meetings in Ankara, most notably with Minister of Justice Sadullah Ergin, relevant department heads in the Ministry of Justice and with Head of the First Chamber of the High Council of Judges and Prosecutors İbrahim Okur and the Council's secretary-general. We appreciated the openness of all our meetings. They were constructive, and we saw a willingness to consider our recommendations. We had detailed discussions about issues around repealing the statute of limitations for unlawful killings and disappearances by suspected state agents. We argued strongly that any repeal of the statute of limitations was a procedural matter that would be applicable retrospectively; in other words, that a change in the law would mean that the old cases could be investigated and trials opened. The minister and those around him working on the issues encouraged further dialogue and communication from us on this particular point, and this we plan to do.

HRW to Turkish gov't: Focus on securing justice for victims of rights abuses

The Sept. 3 report of the Human Rights Watch (HRW) "Time for Justice” draws lessons from the ongoing trial of retired Col. Cemal Temizöz and six others over the murders and disappearances of 20 people between 1993 and 1995. It notes that this is the first such trial of a senior member of the gendarmerie for serious human rights violations committed in the course of the conflict between the state and the PKK:

"There are indications that the AKP [ruling Justice and Development Party or AK Party] government is now increasingly prepared to prosecute the serious human rights crimes of the past. Since the Ergenekon investigation began, the government has given signals that it may be ready to probe military abuses dating back as far as the 1970s.

"This trial of the surviving leaders of the 1980 military coup, together with the Temizöz case, which is the focus of this report and discussed at length below [for the report: http://hrw.org/reports/2012/09/03/time-justice-0], the ongoing criminal investigations such as the one into Ayhan Çarkın's allegations of political killings and assassinations in the 1990s, and most recently a criminal investigation into military interference in politics in 1997, all demonstrate that the government appears to be ready to investigate and prosecute past abuses by the military. However, driving this process should be a greater focus on securing justice for victims of human rights abuses.”

‘I was so afraid that I didn't lodge a complaint'

Ahmet Güler, the sole survivor of the 1993 killing of three men in the Southeast, speaks in the HRW report -- which says that a detailed investigation should now determine which army unit was on duty in that area and village at that time, all the names of those on duty, the command responsibility in the unit, who was operationally responsible and who the senior commanders of the unit were -- about how he and the three others had been led by a group of soldiers and village guards to a location which they suspected was a shelter used by the PKK:

"A group of soldiers and village guards took us to a place -- a kind of pit between some rocks -- and told us, ‘This is a shelter [used by the PKK], isn't it? If you don't tell us, we will kill all of you.' What should we have said? We told them three times we didn't know. It would have made no difference whether we said yes or no. They made us go down into the pit. I went first. They started to shoot at us. I don't know who was behind me at that moment. Before they died, two were still shouting. I heard a voice say, ‘Pull out the pin [of a hand grenade] and throw it in.' A fire broke out after the explosion and the plants were burning around us. I waited for about half an hour and then I got out of there. I had bullet wounds to the arm, hand and back, but my legs were okay. I managed to get back to the village resting after every five or 10 steps. It took me five or six hours. The flesh of the dead men was splattered over me. When I put my hand in my pocket, I felt a handful of flesh from the body of one of them. The villagers took me to Cizre. Then I went to Diyarbakır where I spent 24 days in hospital. After that I stayed in Batman and I have never gone back to my village from that day on. I was so afraid that I didn't lodge a complaint.

PROFILE

Aisling Reidy

An Irish national born in South Africa, she has been a senior legal advisor at Human Rights Watch since 2006. She was director of the Irish Council for Civil Liberties from 2002 to 2005, a prosecuting attorney with the Office of the Prosecutor for the International Criminal Tribunal for the Former Yugoslavia (ICTY) from 2001-2002 and the Senior Human Rights Policy Advisor for the OSCE in Kosovo from 1999-2000. In Kosovo, she also headed the team working on Missing Persons for the OSCE. She has many years' experience litigating cases before the European Court of Human Rights, and between 1995 and 2001, together with lawyers from the Human Rights Centre at the University of Essex and the Human Rights Association in Turkey (IHD), she represented dozens of applicants from Southeast Turkey before the court. Aisling has taught courses on international law, international law on peacekeeping, human rights and humanitarian law at the University of Essex, Trinity College, Dublin and Dublin City University. From 1998-1999 she was Senior Research Fellow on Human Rights at the Constitution Unit, University College London, researching aspects of implementing the UK Human Rights Act and developing human rights training programs for public bodies. A graduate of University College Dublin and the University of Essex, Aisling is a qualified barrister and a fellow of the Human Rights Center at the University of Essex. She speaks French and German.
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