Cologne, 13 June 2005

INTERNATIONAL INITIATIVE BRIEFINGS:
The Ocalan case as a farce - Kurdish leader demands trial before an international tribunal

On May 12, 2005 the European Court Of Human Rights (ECHR) gave its decision in the Ocalan case. The Kurdish leader, the decision says, had not had a fair trial, his right to defence had been restricted, and he had been treated inhumanely by handing him a death sentence. In this way, the Strasbourg judges, in principle, confirmed their decision of first instance. However, their recommendation, that Turkey should reopen the Ocalan case, was new. The court asked the Council of Ministers of the Council of Europe to monitor the implementation of its decision.

All in all, Mr. Ocalan's lawyers regard the decision as positive, although they also found it partly unsatisfactory, since the court had not complied with their appeal in a central point, i.e. the illegal circumstances of Mr. Ocalan's abduction. This point, however, had been extraordinarily important for the appeal, because it had been Ocalan's illegal abduction by the U.S. secret service CIA that had made it possible to hand the Kurdish leader over to Turkey. This, in turn, had lead to the show trial on the Turkish prison island Imrali the Strasbourg judges had to evaluate. Hence, the circumstances of these events as well as the breaches of law committed in their context are still at issue. The appellant holds, that the decision does not consider the background of the society as a whole that lies at the heart of his case. While an appeal at the European Court is always an individual appeal, its is at least questionable in a legal sense, if the social and political context can be ignored completely. Although Mr. Ocalan is doubtless an individual, he is at the same time also the product of a conflict, for which he was held responsible personally and in a biased way.

However, this conflict still remains unsolved, and a solution does not even seem in sight. Rather, the Turkish-Kurdish conflict is heading into a new escalation at the moment. There are daily media reports of clashes between Turkish soldiers and Kurdish Guerrilla fighters. The list of casualties is growing steadily. Although the Kurds have declared their wish for peace they have offered a cease-fire once more, provided the Turkish army agrees to take up negotiations and declares to comply with the cease-fire both Turkish government and army still focus on the military option. A new war seems already within reach.

The military, who still set the tone, were not amused about the decision of the European Court. Leading generals categorically ruled out a reopening of the Ocalan case. Army general Buyukkanit called it an unacceptable affront, since the army was part of the conflict. Then, what is Abdullah Ocalan? Being a prominent representative of his people, is he not also a part of the conflict? It may be debatable, whether he is a prisoner of war, but not whether he is a political prisoner. The European Court of Human Rights concludes in its decision, that it would be best to reopen the Ocalan case. Apart from the fact, that a new trial will only make a quite limited contribution to the solution of the conflict, it is more than questionable, if a fair trial for Ocalan in Turkey is possible at all. Turkey itself is still far from being exactly a state under the rule of law. There is still the perception, that the state has to be protected from its citizens, instead of the other way round. The quite unlimited power of the Turkish military, the arbitrariness of the authorities, and the limited independence of the Turkish courts are evidence of this situation. This evaluation is also nourished by remarks made by leading Turkish politicians, saying that a new trial would not change the decision in any way. The new Turkish penal code, which originally had been passed as a reform on the way to Europe, confirms such fears. The new code particularly restricts the rights of lawyers and the media, including the rights of Mr. Ocalan's lawyers, of course. Before that, rather weird allegations could already lead to persecution by the authorities. Now, a thoughtless remark concerning their client may suffice to officially relieve them of their duties.

Ocalan himself was only recently able to comment on the decision of the ECHR, because his lawyers had been arbitrarily denied access to their client for three weeks. When they eventually met one week ago, they were accompanied by a representative of the prosecutor's office, who recorded the complete conversation. Both Ocalan and his lawyers protested these procedures. Ocalan's lawyers announced they were not prepared to allow themselves to be used in a farce like this. Therefore, they would abstain from further visits, also at the request of their client. According to his lawyers, Mr. Ocalan does not believe that a fair trial will be possible in Turkey. Therefore, he would only agree to a tribunal, that would have to include the misdoings of all conflict parties. Such a trial was not realistic at the moment. Only an international tribunal could warrant a fair trial.

Time will show, if there is a judicial way to realise such a tribunal. It is eventually the political will of the international community to contribute to a solution of the Kurdish question, or not. From the decision of the European Court in the Ocalan case it has become clear, however, that the law cannot replace politics. The international community is required to invite Turkey to play a more constructive part concerning the Kurdish question. The recent killings make it clear, that this problem will not simply vanish into thin air. We need an international effort and political pressure in order to keep a still solvable conflict from escalating. A solution of the Kurdish question must be made a criterion for Turkey's potential EU-membership. The Ocalan case is part of this. Hence, a trial before an international tribunal, where the background of the conflict is also included, would be an important contribution.