The Legal Aspects of the Struggle against Terrorism in the Case of Turkey - Yasar Buyukanit

The struggle against terrorism has two dimensions. Terrorists on one side, and security forces combatting terrorism on the other. When we look at the elements fighting against terrorism, they are units of the Turkish military, including the Gendarmerie, and police forces. Terrorists do not respect rules or law. Their struggle is based on violence. On the other hand, the forces against terrorism have to stay within the limits of law, and this is an obligation. Whether we like it or not, as security forces we cannot ignore the legal aspect. However, we have to mention legal regulations that have negative effects on security
forces. These are not just complaints, but include issues that arise from the practical problems of security elements. As well as the fighting forces awareness of the legal aspects that guide the struggle against terrorism, the recognition of the fight against terrorists and terrorism by the persons and institutions that direct law is just as important. In other words, collaboration and common understanding between the fighters against terrorism and the institutions that enact legislation is needed. The legal aspect of the fight against terrorism should not disregard the fact that this concept has two dimensions.

The first dimension is internal law. This can also be considered as the national dimension. The other dimension is the external dimension consisting of international treaties, conventions and protocols.

The external law dimension is very comprehensive. This issue is elaborated in detail by all treaties, conventions and protocols, including those of the UN. None of these are secrets. They can all be viewed at the web sites of the UN, the EU, the European Council and the European Parliament.

The reasons for the failure of the world in fighting against terrorism is to be seen in practice.

Terrorism and Domestic Law

What are the laws that shape the fight against terrorism? Let’s talk
about legal arrangements and important article in Turkey first.
Later we will look at the effects of these on the fight against
terrorism.

a. Without doubt, the most important law is Counter-Terrorism Law 3713.
b. Another important law is Provincial Administration Law 5442.
c. For some reasons, the first clause of the ninetieth article of
Criminal Court Law 5217.
d. Duties and Authorities of the Police Law 2559 (we will look at
this law particularly in terms of the scope of authority to stop and
control).
e. Law 5651 on the Regulation of Internet Publications and Fight against
Crimes Committed Through These Publications (The scope of this law does not include crimes of terrorism, which constitutes a gap that can be exploited by terrorist organizations).
f. Supplemental 5th Article of the Gendarmerie Organization Duties and
Authorities Law (This law gives different authorities to the police and the gendarmerie, which have the same set of duties. This leads to various problems in practice.
g. We can increase the number of examples. For now, let’s go into a little more detail and more examples.

The Importance of Transparency

One of the most important problems for military units given duties under the 5442 Provincial Administration Law is the difference between its application and interpretation by Republic prosecutors. This causes uncertainties about the legal authorities of the military units and negatively affects elements that are fighting against terrorism.

For instance, it is possible that a unit commander responsible for domestic security in the Southeast is told by the Republic’s prosecutor that he does not have legal authority and his unit can not conduct a search. How can this unit fight against terrorism? A similar situation arose in another city and the problem was overcome by negotiations. According to this interpretation, military units cannot use this legislation’s legal search powers when needed during a terrorist follow-up. As a result, it is necessary for the authorities of military units fighting against terrorism to be clarified in the Provincial Administration Law and for legislative bodies to be informed. In this context, a solution is thought to be a circular order from the Ministry of Justice in the short term, and a supplementary article to Counter-Terrorism Law 3713 on the powers of military units. There are no clauses on this issue in the Counter-Terrorism Law.

Another issue is the uncertainties about the security forces’ authority to enter dwellings, offices and private areas in order to apprehend terrorists in the act. These are serious reservations about entering dwellings, offices and private areas in order to apprehend terrorists in the act. These uncertainties sometimes result in terrorists escaping and prevent the accomplishment of the mission.

An event illustrates this problem. On June 13, 2007 an operation was conducted in the Southestern Elezığ/Karakoçan district. The operation team came across some people in the vicinity of the village of Hamurkesen. They asked “who are you?” in order to confirm their identities, the people said that they were villagers. Although they were asked to “raise their hands and approach” one of them shot their weapon, causing one casualty, and ran into one of the nearby houses. The operation team opened fire on the terrorists, but could not enter the house in question since they did not have a search warrant or authority. They merely patrolled around the house. One day later, on June 14, 2007 the village was searched after receiving a warrant, one of the five suspects was apprehended, but the terrorists involved in the shooting were lost.

In many places the fight against terrorism does not occur on football fields. It occurs under harsh terrain, inappropriate weather conditions and far from settlements, and these conditions give advantages to the terrorists.

How can this be solved? It is legally possible. In order to eliminate this problem an addition to the 10th article of the Counter-Terrorism Law or a revision of the first amendment of the 90th article of Criminal Court Law 5217 can be considered. Thus, it is possible to eliminate problems in situations such as operational conditions where written warrants are needed from the Republic prosecutor, and it is impossible to receive this warrant, and to ensure the detainment of the suspects and witnesses.

The Authority to Stop and Search

Another striking example is about the scope of the authority to stop and search.

Let’s first look at the legal aspect of the issue. As a result of recent changes in the Turkish Police Duties and Powers Law 2553, the authority to stop and search has been narrowed down, by a new amendment stipulating that, when persons are stopped due to complaints or intelligence information, the police are not allowed to take peoples clothes off or search parts of vehicles that are not visible from the outside (such as trunks) even if there is sufficient suspicion that there are weapons or other dangerous objects. Under these circumstances, these powers become meaningless and terrorists are given the opportunity to hide their weapons op explosives in parts of vehicles that are not visible from the outside, such as trunks.

On June 18, 2008, in Eastern Anatolia, 5 kilometers outside of Erincan, within the provincial gendarmerie jurisdiction, a pick up truck was stopped at a checkpoint, and terrorists hidden between bee hive boxes opened fire, wounding two NCOs and 2 privates. Even though the vehicle had been stopped as a result of a warning, since it was not legally possible for the gendarmerie to search the bed of the pickup truck, the terrorists could not be found and detained.

This could have led more dramatic events (investigation revealed that these terrorists were moving to the Black Sea region as part of their ‘Opening to the Black Sea’).

One issue should be emphasized.Of course, even in the fight against terrorism, we should abide the law. However, if the right to live becomes the terrorists’ right, this will harm the fight against terrorism. This should not be forgotten.


Terrorist Propaganda and the |nternet

Another problem is the prevention of terrorist propaganda.

Terrorist organizations win a lot of support through internet publications, and they use this medium especially for recruitment activities. During Interviews with detained terrorists, they clearly state that media\internet activities have significant influence on their decision to join terrorist organizations.

In order to prevent these activities, it is necessary to revise Law 5651 on the Regulation of Internet Publications and Fight against Crimes Committed Through These Publications.

Although the existing law is comprehensive, it does not include the crimes cited in the Counter-Terrorism Law 3713 (Article 8). These must be included in the law.

This issue is not only about terrorism. Technological developments surely make life easier. However, when technology is used with bad intentions the results are tragic.

This law article is tragic for security forces, and makes the fight against terrorism more difficult. The 5th amendment of Article 140 in the Turkish criminal court law prevents surveillance of people’s homes with technical equipment. Criminal organizations, especially, rent houses using couples that appear to be married and organize and plan their activities and hide material to be used in their activities in these houses. The prohibition brought by this article creates an untouchable area for security forces even with court warrants. This article is certainly justified and lawful when it comes to the privacy of citizens. Nevertheless, where does the recently publicized unlimited surveillance fit in this article?

Terrorism and International Law

a) An examination of international treaties, protocols and conventions reveals the reason for the rise of terrorism on a global scale, since signing a convention does not necessarily imply implementation. As long as nations do not incorporate the substance of these conventions into their domestic legislation and implement them, these conventions have no value.

b) There are a total of 17 conventions on the prevention of terrorism: 12 United Nations conventions and 5 EU/European conventions. One issue in the UN conventions deserves our attention. This is the piecemeal nature of the conventions. There are separate conventions concerning the hijacking of aircraft, and another for maritime attacks; one for attacks on diplomats, and another for the use of plastic explosives; a convention on the financing of terrorism, and another on cross border organized crime.

Evaluating these conventions comprehensively, we see that they do not have a comprehensive view of terrorist activities. There are particular conventions to meet the various circumstances that arise. However, however none of these have attained a concrete dimension because none of them have been applied in a practical sense. Let’s say the most important thing. The UN has still not defined terrorism because an international agreement has not been reached on the definition of terrorism. Here a question arises. How can we struggle against a threat that has not been defined?

c) As one can understand, although the concept of terrorism has existed for centuries, to this day there is no definition that nations have agreed to without exception. This is essentially because terrorism and concepts related to terrorism are difficult to define, and most importantly, because governments act according to their interests in the international arena. In other words, one organization defined as terrorist by one country might be seen as freedom fighters by another, and even be at the latter’s service.

From this perspective, we can see signs of this approach in the conventions prepared by the UN.

The UN’s first effort to combat terrorism was the the November 21, 1947 decision number 177/11 to charge the international law commission with preparing, “Draft Code of Offences Against the Peace and Security of Mankind.” This draft contains an important article, defining the following as an offense:


“The organization, or the encouragement of the organization, by the authorities of a State, of armed bands within its territory or any other territory for incursions into the territory of another State, or the toleration of the organization of such bands in its own territory, or the toleration of the use by such armed bands of its territory as a base of operations or as a point of departure for incursions into the territory of another State, as well as direct participation in or support of such incursions.”

I am mentioning the 1947 UN decision, in particular, because we see that terrorist activities today oppose it directly.

d) There are 2 European international conventions and 5 European Union international conventions. I must list the latter:


1. The European convention on the prevention of terrorism
2. The European Council convention on the prevention of terrorism
3. The search and seizure of terrorist organizations’ revenues
4. The European Council convention on the financing of terrorism
5. Convention on cyber forces

Now, these conventions notwithstanding, what has been done? Let me state clearly that nothing has been done. In Europe today the terrorist organization that conducts all kinds of violent activities against Turkey is leading convoys full of flags, or better, rags. PKK television is still on the air in Europe. In Europe the PKK lives with better security than Turks do. All their income comes from Europe.

No doubt counterterrorism should be conducted within the bounds of law. The opposite is unthinkable. While there are attacks on police and the gendarmerie and posters of terrorist leaders are hanging in the streets, it is difficult to find a response for innocent citizens who ask “which law?”

There is no difference between the EU and the UN conventions.

A terrorist organization cannot sustain itself without external support. In our long struggle we Turkish security units have learned something very well. The terrorist organization has support from abroad. This is certain. Secondary support comes from domestic collaborators. Burying our heads in the sand will not resolve the problems caused by terrorism.