Multinational Corporations and International Crime

The criminal proceedings of the Nuremburg Trials following the atrocities of the Nazi regime’ genocidal violence against humanity strengthened an international understanding of the concept of complicity to violence and soon thereafter developed the international law of human rights. Leaders in the Nazi regime were prosecuted for crimes against humanity in a series of international trials that were divided into two primary groups, namely that of organisations and that of individuals.[1] The tribunal at Nuremberg in addition to charging the defendants with heinous crimes also charged some as conspirators, namely that of mens rea or the subjective criminal intention that indicates liability. At the time, the laws of conspiracy were utilised in the United States to tackle the growing trends of organised criminal behaviour, whereby “it is a useful one [the charge of conspiracy] to bring against a gang leader who does not himself blow the safe, kill the bank guard or drive the getaway car.”[2] Under the Control Council Law[3] of the International Military Tribunal in Nuremburg, conspiracy was considered to be crimes against peace,[4] which is planning in anticipation of committing such violations and remains the most controversial aspect of the proceedings. The question of responsibility and complicity to acts of gross human rights violations was further amplified when tribunals were established for the atrocities committed in Rwanda and the former Yugoslavia. While these cases have charged individuals and organisations for state-led oppression, violence and genocide, the problem with Multinational Enterprises working in foreign countries and their immunity due to limitations in international law has been raised to the fore as an important topic for discussion vis-a-vis international law.

The continuous changes to the expanding economic structure in a globalised world along with the broadening of knowledge viz., the long-term impact environmental and human rights abuses can have, processes that emphasise responsibility by multinational enterprises has gradually started to form in the international arena. This includes the developments of international obligations and processes that assist States – particularly vulnerable countries in the developing world that often experience negligent abuse from Multinational Corporations – to develop legislation that will protect them from potential abuse, along with the willingness of domestic courts to implement domestic laws on crimes committed internationally, such as the United State’ District Courts and the Aliens Tort Claims Act 1789. The Maastricht Guidelines is another and explains the obligations of the State to adhere to Economic, Social and Cultural Rights as explicated in the international covenant. The growing pressure from NGO’s and the poor reputation that multinational companies encounter also work as preventative measures to ensure compliance to international codes of business conduct and corporate behaviour. This includes the supply chain that multinational enterprises do business with or contractually hire, becoming vicariously liable for any violations of human rights perpetrated by entities with which it does business.

These violations can include poor labour standards, environmental damage and serious harm to the welfare of inhabitants from pollution, and complicity to serious oppression and violence from private contractors, the government or the military. Conversely, a multinational firm can play a vital role in the positive contribution to a State that can include employment and thus improve the capacity for communities to acquire   needed services, infrastructure and economic growth. Whilst I will try and attempt to broadly detail several areas of concern when discussing Multinational Enterprises [MNE’s], these being a brief analysis of existing laws and international covenants relating to international business and human rights; this is vital as it amplifies an understanding of the second area of concern, namely whether multinational enterprises should be held responsible for violations of human rights perpetrated by entities with which is does business. Delving through particular situations and cases, a brief comparative to existing, domestic tort procedures and laws such as the concept of vicarious liability and contract workers as I have discussed in previous posts, or command responsibility in martial courts, I will attempt to ascertain what corporate responsibility is and how the adoption of human rights principles can ensure sustainability and address the obligations as required by international covenants.

Corporate crime can involve economic, political and industrial failures leading to organisational decisions that can possibly affect not just the individual employee or employees, but also the broader community in general. From well known litigation cases against chemical companies guilty of both environmental and human rights abuses or pharmaceutical companies restricting access to life- saving medications, the topic of human rights and business responsibilities on a global scale is at the forefront of the international economic agenda, particularly since the capacity for multinational entities to commit serious crimes at a large scale can – in reverse – also be capable of effectively promoting and even safeguarding human rights. This is particularly the case for States in post-conflict situations or in an humanitarian emergency or crises that requires immediate assistance and support. It is for this reason the United Nations established the UN Guiding Principles on Business and Human Rights to remedy the abuses and the failure of multinational corporations adhering to the standards as required by international human rights law. The preamble to the Universal Declaration of Human Rights, which was established following the atrocities committed during World War Two and that illustrates a global commitment to the inalienable rights of humankind, states that, “[w]hereas Member States have pledged themselves to achieve, in co-operation with the United Nations, the promotion of universal respect for and observance of human rights and fundamental freedoms.”[5] All state actors and by extension multinational firms that agree to support the integrity and dignity of the human person as espoused in the UNDHR are prohibited to breach the obligations articulated within the body of international human rights laws.

The legal protections required to enforce UN conventions remain dependent on domestic legal systems, and notwithstanding the many member states that have effectively implemented human rights law into domestic legislature, there remains many States that have failed to comply with the required obligations of international law. This collision between international and domestic human rights laws can be comparatively identified in Islamic countries that expose the inconsistencies between Sharia laws and the requisite universality of human rights and the sovereign equality of State actors. “The contentious nature of Sharia’s interpretation of individual rights and its arguable incompatibilities with modern paradigms of human rights law nevertheless have to take into account the historic inequities with which Islamic societies have operated.”[6] Accordingly, the foundational principles and obligations in the Guiding Principles on Business and Human Rights purports that States themselves must take appropriate steps to prevent abuse through the implementation of domestic legislation and policies.[7] While a plethora of resources have become available to promote such domestic changes, the protections afforded by legal rights is wholly reliant on their implementation into domestic law that adequately remedies the cooperation between state and non-state actors within the international arena opinio juris sive necessitatis.[8] Regarding the latter, relations at transnational level can be exemplified through mutual collaboration on the enforcement of anti-terrorism activities, further still and equally as intricate is state immunity and human rights.[9]

Nevertheless, the Organisation for Economic Co-operation and Development (OECD) have established guidelines specific to multinational enterprises[10] that promote responsible business conduct through appropriate stakeholder engagement models that heighten transparency of the activities of multinational organisations. Followed by the Declaration on International Investment and Multinational Enterprises, the recommendations themselves, whilst voluntary, attempt to ensure that companies adhere to human rights standards and combat fraudulent and criminal behaviour. The benefits that it can have on the economy of the State encourage social progress and thus contribute to positive domestic development. And what exactly is a multinational organisation? The OECD Guidelines does not contain a precise definition of a multinational enterprise and states that multinational companies may be private, state or both that coordinate and operate in more than one country.[11] In addition to the OECD, UN documents such as the Declaration on the Establishment of a New International Economic Order,[12] the Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy[13] along with United Nations Set of Principles on Competition[14] each attempt to regulate and supervise the activities of transnational corporations. An ‘enterprise’ has been defined as “firms, partnerships, corporations, companies, other associations, natural or juridical persons, or any combination thereof, irrespective of the mode of creation or control or ownership, private or State, which are engaged in commercial activities, and includes their branches, subsidiaries, affiliates, or other entities directly or indirectly controlled by them.”[15] The purpose and incentive of the guidelines is to entice States regulate the behaviour of multinational entities with accountability mechanisms that legislate protections particularly through tort law that will safeguard against any potential abuses. For instance, the Australian government recently reached a compromise and passed a new Multinational Anti-Avoidance Law (MAAL) that requires multi-national companies in Australia to practice efficient financial and tax reporting publications to ensure better transparency in the prevention of tax fraud.[16]

 

Contracted to protect? DynCorp instead trafficked young girls in the Balkans.

 

However, as there remains no internationally enforceable remedy against potential multinational corruption and when considering the power of multinational enterprises’ particularly in the developing world or even failed States, national sovereignty becomes questionable and criminal acts such as bribery of public officials and human rights abuses become increasingly possible.[17] In Bosnia and Herzegovina, for instance, following the tragedy of war and violence in the region, Dyncorp Enterprise – private security contractors – had staff responsible for the rape and trafficking of girls as young as twelve years of age.[18] Whistleblower Kathryn Bolkovac, who was deployed on a peacekeeping mission and who uncovered the scandal was instead threatened and finally dismissed, a case of unfair dismissal confirmed by the employment tribunal in the United Kingdom.[19] The staff responsible for committing the criminal act of human trafficking in the region were merely moved and have yet to be charged since any remedy to such crime is based on the State’ duty to protect, evidently an issue when considering failed states, along with little explanation on what the State – being the United States in the case of Dyncorp Enterpise – has in regulating such criminal behaviour. Pressuring states is not uncommon even in developed countries, with international tobacco corporations pursuing action against Australia in Philip Morris v Australia. Whilst it is clear Australia’ aim is to protect human health and safety through plain packaging as an investment procedure toward the reduction of preventable deaths,[20] Philip Morris Asia disputed the change by claiming breaches to provisions in trade agreements with Hong Kong. “The Australian Government rejects PM Asia’s claim that it has breached the obligation under Article 6 not to deprive investors of their investments or subject investors to measures having effect equivalent to such deprivation.”[21]

Accordingly, along with the International Court of Justice and the World Trade Organisation’ Dispute Settlement function,   to place pressure to legislate domestic human rights avenues such as sanctions and – certainly dependent on the circumstances of the State in question – military force are used as coercive methods to prompt pressure on the countries in question. The economic opportunity that multinational entities bring to States can be employed as part of this method to endorse sustainable development, defined as: “[d]evelopment that meets the needs of the present without compromising the ability of future generations to meet their own needs.”[22] If one considers the responsibility that MNC’s have as inadvertently contributing to human rights violations by supporting third-party organizations that commit such crimes, their capacity to ensure that their supply chain remains free from any such abuse would conversely promote human rights obligations. The reliance that some States have on MNC’s can opportune legal and procedural changes for the better. The attention to the global failures from MNC’s in developed countries have led to valuable growth in the dedication for goods and services that promote fair and equitable conditions. For instance, foods including coffee, chocolate and other produce that contain the Fairtrade logo are steadily being promoted as a method to advocate proper labour conditions in developing countries. This can be similarly seen in Fair Wear ensuring the apparel industry adopts similar trademark assurances for consumers who desire to purchase items of clothing in confidence that workers are not exploited along with ethical diamonds and gemstones purchased as a preventative measure against the violence and slavery in mines. After extensive campaigning and lobbying by Greenpeace and other environmental activists against tissue paper company Kimberly-Clark for clear cutting endangered forests,[23] the company has agreed to approach the acquisition of required materials utilising an environmentally sustainable approach. Inter-organisational empowerment programs where negotiations between NGOs and MNCs is developing significant changes to the not only the exploitative practices of the latter, but also develop sustainable standards that promote a commitment to human rights and environmental protection.[24]

However, as goods and services are becoming regulated, reliance on petroleum in the developed world and access to lifesaving medications through the pharmaceutical industry in the developing world still remains difficult to challenge with jurisdictional restrictions failing to impose accountability laws for any violations that may be perpetrated. However, domestic courts in the Australia, the UK and the USA have developed processes that allow them to accept international cases and in turn impose penalties and responsibilities for violations for acts committed on foreign soil.[25] The Aliens Tort Claims Act 1789 (ACTA) was established in the late eighteenth century to tackle the problem of pirates and granted non-US citizens the capability to bring a law suit to the US District courts for civil cases that may have occurred anywhere in the world by individuals or organisations that contravenes treaties the United States is a signatory of.[26] Dormant for over a century, Filártiga v. Peña-Irala[27] raised the statute to the fore; the landmark case found the Filártiga family suing former state official Américo Peña for the torture and violent death of Joelito Filártiga by Peña while they both lived in Paraguay.[28] The Filártiga family won the suit and found Peña had violated international human rights laws. The question of whether multinational enterprises should be held responsible for violations of human rights perpetrated by entities with which is does business may appear clear, however the circumstances and the scope of responsibilities in the international arena still remain convoluted. Whilst accountability mechanisms and guidelines as mentioned earlier do exist, depending on the State in question, enforceability is often reliant on existing domestic laws and agreements particularly relating to labour rights, environmental protection and other safety legislation. While the United States established the Aliens Torts Claim Act 1789 that allows domestic laws to be used as a remedy for extraterritorial abuses, including the recent tort case against Chocolate company Nestle. Global Exchange and several former child slaves brought a class action suit against Nestlé, Archer Daniels Midland and Cargill who sourced cocoa from the Ivory Coast in Africa where children who had been captured from Mali were enslaved on the plantation farms. It is alleged they had breached the Aliens Torts Claim Act 1789 with the United States Supreme Court confirming that the case had justifiable merit.[29] This comes after a report from Save the Children in Canada that purports that over 15,000 children from Mali were sold into slavery in the Ivory Coast,[30] in addition to UNICEF’ study that almost 200,000 children are trafficked yearly along the West Coast of Africa.[31] Accordingly, the company was aware of the use of children and instead offered financial assistance so as to source the cheapest cocoa and thus, by extension, should be held accountable for the slavery. This comes after the company itself agreed that forced labour was being used in Thailand with supply chain company Thai Union with which it does business for its Fancy Feast cat food product.[32] “A report commissioned by Nestle SA found that impoverished migrant workers in Thailand are sold or lured by false promises and forced to catch and process fish that ends up in the global food giant’s supply chain.”[33]

While Nestle had in fact admitted to their failure following the report they commission with company Verité – a business that attempt to ensure transparency in supply chain processes – which exposes the developments for MNC’ to internally become more behaviorally responsible, nevertheless the company itself is tainted with a history of human rights abuses being one of the most boycotted companies in the world.[34] During the 1980’s, Nestle was found to have promoted the use of baby formula in Africa over breastfeeding, the latter of which civil society groups encouraged due to evidence of better nutrition and antibodies present in the milk.[35] As a consequence, the socioeconomic conditions of mothers in developing countries who, being impoverished and thus the costs associated with purchasing the baby formula taking a large portion of the family’ income, mothers began to dilute the powder in order to stretch the use.[36] With no other information supplied to them other than the marketing that baby formula was better than breast milk, infant mortality in the region was exasperated particularly due to the poor sanitary conditions of the water used in the formula. This resulted in the World Health Organisation developing a Marketing Code,[37] whereby, “[r]ecognizing further that inappropriate feeding practices lead to infant malnutrition, morbidity and mortality in all countries, and that improper practices in the marketing of breast-milk substitutes and related products can contribute to these major public health problems.”[38] Sporting giant Nike, with an annual turnover of more than $US27 billion, became well known for being linked to deplorable labour conditions or ‘sweatshops’ throughout South East Asia and Latin America. Business magnate Phil Knight outsourcing the manufacturing of the apparel to countries that offered cheap labour and instead poured much of its financial resources toward the adoption of a strong marketing strategy.[39]

Thus the success of the business has been built on abysmal working conditions for many labourers in developing countries, earning notoriously low salaries [at about 20 cents per hour][40] where such transnational sourcing of cheap labour supplanting the opportunity for human rights abuses. While Filártiga v. Peña-Irala certainly paved the way for justice against human rights abuses, the problem of jurisdiction and the examination of liability is central to the problem of multinational enterprise’ and gross negligence. One of the primary issues being whether a multinational enterprise can be held responsible for private non-state perpetrators. In Kadic v. Karadžić[41] where Ms. Kadic filed a suit against Radovan Karadžić for rape camps in Bosnia, it was confirmed the district courts were willing vis-à-vis the Aliens Torts Claims Act 1789 to cover private, non-state actors.[42]

Taking a comparative approach to the question of who should bear the responsibility for violations of human rights perpetrated by entities with which it does business, the concept of vicarious liability – a common law principle that purports liability by an employer for the tortious acts of an employee delegated duties to act on their behalf that I have previously discussed in a post here – can insist the responsibility of MNC’ supply chain management. As a legal term, vicarious liability ensures that employers are responsible for any negligible behaviour that occur within the workplace and not just by employees, but also agencies and contract workers. “A person who employs others to advance his own economic interest should in fairness be placed under a corresponding liability for losses incurred in the course of the enterprise.”[43] It was generally viewed that independent contractors who are assigned specific duties for a company were in principle in business for themselves and thus responsible for any incident or damages that may occur during the contract, however the growth and ultimately changes to employment structures and processes prove employers are responsible for the negligent acts by independent contactors.[44] In Doe v Unicol Corp [45] it was confirmed that corporations can be held responsible for working in concert with state officials, whereby companies are not necessarily immune from the scope of international law.[46] The pipeline project in Burma under the management of Unicol Corp [Union Oil Company of California], where the plaintiffs whilst building off-shore drilling stations in the Andaman Sea intended to build a pipeline through the Tenasserim region of Burma into Thailand found the Myanmar military units or State Law and Order Restoration Council (SLORC) – hired to manage security during the project – for committing gross human rights violations against villagers in the region.[47] This included torture, rape, forced labour and forced relocation[48] where it was alleged that Unicol was aware of these acts of human rights violations and had the capacity to prevent or stop the atrocities.[49]

“According to plaintiffs, when Unocal and Total entered into the agreement by which SLORC undertook to clear the pipeline route and provide security for the pipeline, defendants knew or should have known that SLORC had a history of human rights abuses violative of customary international law, including the use of forced relocation and forced labor… [p]laintiffs assert, on information and belief, that defendants Unocal and Total   were aware of and benefitted from, and continue to be aware of and benefit from, the use of forced labor to support the Yadana gas pipeline project.”[50]

This reasoning is similarly seen in cases for alleged criminal behaviour by individuals in military courts vis-à-vis the doctrine of command responsibility, particularly the case of U.S Army Captain Ernest Medina in Vietnam. What has become notoriously known as the Mai Lai Massacre,[51] taking place in a hamlet in Southern Vietnam where over five hundred unarmed civilians – including women and children – were brutally murdered, raped and mutilated by US soldiers in one day of carnage,[52] only one court-martial conviction against Second Lieutenant William Laws Calley Jr. for ordering the murders of the civilians was made and even so, through a presidential pardon his life imprisonment was overturned to several years of house arrest.[53] Accordingly, Calley claimed that he was acting on orders given to him by Medina, who during the massacre chose not to intervene and was nevertheless acquitted of any crime during his trial.[54] While it is clear that the case of Mai Lai is violations of the laws and customs of war and can be constituted as war crimes and devastation not justifiable as necessary, the question of who is responsible for preventing, repressing or failing to take reasonable measures to prevent crimes against humanity, as is applicable in Rule 153 of Customary International Humanitarian Law: “Commanders and other superiors are criminally responsible for war crimes committed by their subordinates if they knew, or had reason to know, that the subordinates were about to commit or were committing such crimes and did not take all necessary and reasonable measures in their power to prevent their commission, or if such crimes had been committed, to punish the persons responsible.”[55] In the case of Doe v Unicol Corp, holding corporations liable for aiding and abetting crimes by applying international law, the courts utilised two ‘tests’ that attempted to ascertain liability, namely that of actus reus and mens rea,[56] whereby, “accountability for a certain harm because of objective (actus reus) and subjective (mens rea) criteria”[57] and to thus identify criminal responsibility. Whilst the scarcity of sources relating to the liability of aiding and abetting in international law, both actus reus defined as “the wrong act”[58] in Latin and is the actual physical act, along with mens rea or “a guilty mind” and the subjective mental state of mind have been utilised at the Nuremburg Trials and the International Criminal Tribunals for both the Former Yugoslavia (ICTY) and Rwanada (ICTR). Accordingly, the judgement of Prosecutor v. Anto Furundžija, it was stated that to establish actus reus, “the cases which follow indicate that in certain circumstances, aiding and abetting need not be tangible, but may consist of moral support or encouragement of the principles in their commission of the crime.”[59] That is, that the likelihood and extent of the crime indirectly increases in effect of their behaviour.

 

Exxon Mobil hired security forces that committed acts of torture and murder. Does that make them responsible?

 

In Doe v Exxon Mobil, a group of Indonesian villagers from Aceh filed a lawsuit against oil company Exxon Mobil Corporation where the plaintiffs held that the company had hired security forces that committed human rights abuses against members of the village including torture, kidnapping, arbitrary arrests and murder.[60] It is thus alleged that the company’ negligent hiring and supervising of the security forces carries responsibility since they indirectly facilitated the violence. A multinational enterprise’ purpose is to ‘advance their own economic interest’ and doing so with entities that perpetrate human rights violations expose their indirect contribution to negligence and thus by extension contributory to the harm suffered. Thus, the question is, how far does the scope of responsibility extends? As instantiated at the beginning, whilst we are aware of the rights of the human person, corresponding and equally as significant are our obligations.

It cannot be denied that particular MNC’s certainly have an influential capacity over governments, policies and politics in general. Fox News’ Rupert Murdoch, despite the notorious international phone hacking privacy breaches by News Corp, is an example of the power and influence an MNC can have with governments. The media mogul recently tweeted a series of comments regarding the Turkish elections, his controversial   relationship with the Erdogan government along with his acquired television and media rights in the country have raised concerns about his capacity to have an influence on social decision- making in the country. “Almost everywhere in the world, most of the media is still politically differentiated along with general political orientations.”[61] Whilst it is clear that media liberalisation is essential for democracy and thus by extension human rights, suspicions that the Turkish press had been infiltrated by centre- right political influence was solidified with the recent Gezi Park Protests in Istanbul, a story rarely mentioned on popular television broadcasters owned by Murdoch in Turkey during the tumult. The AKP in addition has attempted to strengthen legitimacy by showcasing popular domestic support and falsely representing themselves as significant actors of democracy, it is evident that media representation of the party is one-sided with Turkey becoming notorious for arresting journalists and restricting the independence of journalism and the media, social media becoming an expressive platform to expose the discontent displayed by the population. Notwithstanding the case against Nestlé, Archer Daniels Midland and Cargill, a plethora of other tort litigations have nevertheless been rejected under the Aliens Torts Claim Act 1789 due to forum non conveniens, whereby the legal system of the country in question is adequate to pursue the case independent of the United States. Yet, often the laws particularly of developing countries remain deficient particularly if the sovereignty or governance of the State remain dependent on the investment and thus coverage of the areas of potential abuse by MNC’s is often insufficient to merit legal action. With a yearly revenue of more than $US120Billion, petrochemical company Chevron Corporation is an example of how a multinational organisation plays an instrumental role in environmental destruction and   human rights abuses. Their   notoriety   is perhaps more prominent in Ecuador, whereby the subsidiary Texaco had dumped millions of gallons of toxic bi-products over several decades causing not only serious environmental contamination that has resulted in ocean acidification and producing the drastic global changes with global warming and other effects.[62] In addition, the indigenous communities were struck with terminal illness and death due to the poisonous corruption of the local water system. “The company dumped untreated crude oil into open and unlined pits, from which toxic chemicals then leached into water system and through the soil of village lands.”[63]

Litigation against the multinational company by a group of Ecuadorian citizens in 1993[64] and was later dismissed by the Federal Court almost a decade later due to forum non conveniens whereby the complaint could be adequately served in Ecuador.[65] A similar case against Union Carbide Corporation in India that found thousands killed or seriously injured for the leak of methyl isocyanate gas,[66] whereby the State District Court of New York dismissed the case purporting that India had an adequate forum to launch legal proceedings against the disreputable company. This raises the question of extra-territorial tort proceedings. In 2006, Chevron filed for an international arbitration claim at the Hague claiming that the Government of Ecuador violated a bilateral investment treaty with the United States,[67] purporting that the 2003 class action against the multinational in Ecuador had been corrupted by influencing the judiciary, with the arbitration panel ruling in favour of Chevron that requested the suspension any enforcement until compliance with an Interim Measures Order had been met.[68] Criminal proceedings are still underway at the International Criminal Court against CEO of Chevron[69] for ignoring the requirement to clean the toxic waste in the Amazon and while a tumultuous case at the Ecuadorian Supreme Court that imposed damages of almost $US10 Billion[70] against the company, blatant disregard of their responsibilities is clearly manifest even on their website that states: “Chevron is defending itself against false allegations that it is responsible for alleged environmental and social harms in the Amazon region of Ecuador.”[71]

Whilst I have tried to elucidate in different sections of this blog post relating to what type of enforcement mechanisms could be used for human rights violations, including domestic laws and better approaches between MNCs and NGOs that negotiate sustainable frameworks that safeguard human rights principles as applicable in international law, therein nevertheless exists obstacles to these enforcements. It is clear that the United Nations and other national and international bodies are focusing on more effective methods to reduce MNC crime, whereby in 2003 the U.N Sub-Commission on the Promotion and Protection of Human Rights implemented the Norms on the Responsibilities of Transnational Corporations and Other Business Enterprises with Regard to Human Rights that detailed business obligations and to a degree ensured clarity that businesses must ensure their obligations to human rights has been met. Prior to that, Kofi Annan whilst addressing the World Economic Forum proclaimed the Global Compact initiative that encouraged businesses to ensure the adoption of internal policies and procedures that ensured a sustainable approach to human rights. Combined efforts developed the draft norms that attempts to solidify business compliance in a legally binding set of principles and avoid MNCs from being complicit to human rights violations. Nevertheless, whilst these norms begin the process of developing into a binding treaty, organisations such as the International Organization of Employers opposed the draft norms.[72] In fact, hostilities to the framework as a remedy were rejected even by States including Australia, UK and the United States.[73] The guidelines themselves, as stated in the preface, “encourage the positive contributions that multinational enterprises can make to economic, environmental and social progress and to minimise the difficulties to which their various operations may give rise.” Whilst voluntary in character, the general principles and policies with a context of their global application, ensure not just sustainable development and supply chain responsibility, but also calls for the establishment of local capacity building procedures. Such encouragement could certainly have a long-term, normative impact particularly as a preventative measure against any social or environmental risks via the encouragement of ensuring they are combating any adverse practices that motivate corruption, violence and other abuses that impact on society and the environment. It is therefore foreseeable that the guiding principles may have a normative effect in resulting behavioural changes. This is followed with the recent adoption of resolution 26/9 on the 26th of June, 2014 that sought to develop working group on MNEs and other businesses to mandate internationally legally binding instrument that will officially regulate corporations inclusive of States and non- State and private actors. These negotiations are underway and it is clear that internationally enforceable mechanisms to ensure compliance to human rights norms – whilst yet to be achieved – nevertheless is certainly developing toward processes that places duties directly on not only States but also private, non- State entities and multinational corporations.

There are also other tactical advantages that can be utilised against MNC’s to place pressure for the adoption of internal policies and procedures that will result in an overall behavioural change that safeguards rights. The demands of consumers themselves are changing, with companies adopting the purchase of ethically sourced products, for instance the multinational company Starbucks who has adopted a sustainable strategy known as C.A.F.E [coffee and farmer equity] for ethically sourced coffee, tea and cocoa.[74] Additionally, the company also has ensured that farming communities linked in any way to their supply chain are managed by working closely with Conservation International, in addition to re-forestation projects.[75] Organisations like Conservation International and Amnesty International are adopting preventative strategies that build or strengthen relationships with MNC’s as well as developing frameworks76 that supplant compliance through collaboration. In addition, the implementation of sanctions to pressure States to ensure compliance to human rights has also been an effective method that promotes change.

“Sanctions imposed in the past, such as those imposed during WWII, the trade and financial sanctions against China, the Iran hostage sanctions, and the ongoing Iraqi sanctions, have been very effective means of achieving well- defined foreign policy objectives. Whether imposed for such broad policy reasons or in response to specific human rights concerns, sanctions usually, and perhaps inevitably, involve an immediate human cost within the target state. Short of abandoning sanctions as foreign policy tools, however, there is probably no practical way to ensure that sanctions both narrowly affect only the targeted state actors and still remain effective.”

However, sanctions can also work in reverse. In 2011, France began a process of approving of a Bill that would recognise the acts committed during the last phase of the Ottoman Empire prior to its dissolution against the ethnic Armenians as ‘genocide’ where more than 1.5 million died during a process of ethnic cleansing, an accusation the Turkish government staunchly opposes.[77] In response to the potential legislation, Turkey applied numerous sanctions particularly relating to trade agreements and reprisals against multinational entities located in Turkey from France that it is assumed the potential law was struck down due to the dwindling relationship between both States.[78] Whatever the case is, it appears that at this very moment, international law is ineffective in controlling the free-reign that multinational corporations enjoy and the only real preventative measure is the effects civil society can employ through boycotting sales of the products that they make or purchase through the international supply chain. This would mean that “hippies” who care about our environment and human rights activists that have fought corrupt companies by exposing such atrocities are in effect the champions of change as in doing so, Fair Trade products have come to fruition among many more. Thus the biggest change possible is by stopping the use of products that are damaging communities and the environment in developing countries by the people spending the money in countries like mine; we all have the blood on our hands and thus it is all our responsibility.

 

1 George Ginsburgs and Vladimir Nikolaevich Kudriavtsev, The Nuremberg Trial and International Law, Martinus Nijhoff Publishers (1990) 62
2 Ibid., 64
3 Nuremberg Trials Final Report Appendix D, Article II of the Control Council Law No. 10, Punishment of Persons Guilty of War Crimes, Crimes Against Peace and Against Humanity
4 Juliet Okoth, The Crime of Conspiracy in International Criminal Law, Springer (2014) 94
5 Universal Declaration of Human Rights (1948). Also see Vienna Declaration and Programme of Action (1993).
6 Javaid Rehman and Susan Breau, Religion, Human Rights and International Law: A Critical Examination of Islamic State Practices, Brill (2007) 14. In Article 5 of the Vienna Declaration, it states: “While the significance of national and regional particularities and various historical, cultural and religious backgrounds must be borne in mind, it is the duty of States, regardless of their political, economic and cultural systems, to promote and protect all human rights and fundamental freedoms.”
7 §1(1) UN Guiding Principles on Business and Human Rights (2011)
8 Benedetto Conforti and Angelo Labella, Introduction to International Law, Martinus Nijhoff Publishers (2012) 33
9 See GFCC, Judgment of the Second Senate of 18 July 2005 – 2 BvR 2236/04 -paras. (1-203)
10 Organisation For Economic Co-operation and Development, Multinational Enterprises of the Organization for Economic Co-operation and Development (2008)
11 Ibid., 12
12 A/RES/S-6/3201 Declaration on the Establishment of a New International Economic Order. Also   see 3202 (S-VI) Programme of Action on the Establishment of a New International Economic Order (1974)
13   International Labour Organisation, Tripartite Declaration of Principles Concerning Multinational Enterprises and Social Policy (2014)
14 United Nations Set of Principles and Rules on Competition: The Set of Multilaterally Agreed Equitable Principles   and Rules for the Control of Restrictive Business Practices TD/RBP/CONF/10/Rev.2 (2000)
15 Ibid.
16 Tax Laws Amendment (Tax Integrity Multinational Anti-Avoidance Law) Bill 2015, Exposure Draft Explanatory Materia. See: http://www.treasury.gov.au/~/media/Treasury/Consultations%20and%20Reviews/Consultations/2015/Tax%20Integrity%20Law/Key%20Documents/PDF/EM_Tax_Integrity_Multinational_Anti-avoidance_Law.ashx
17 It is for this reason that legislation such as Criminal Code Amendment (Bribery of Foreign Public Officials) Act 1999 (Cth) was developed.
18 Carissa A. Rarick, “Fighting War and Furthering Slavery: The Alarming Truth About Private Military Firms and the Solution to End Their Involvement in Human Sex Trafficking,” Journal of Global Justice and Public Policy [Vol. 2/65]
19 Human Rights Watch, ‘Bosnia and Herzegovina Hopes Betrayed: Trafficking of Woman and Girls to Bosnia and Herzegovina for Forced Prostitution’ [Vol 14:9] 55
20   In addition, the WTO   Dispute Settlement Body received five primary complaints from Honduras, Indonesia, Cuba, Ukraine and the   Dominican Republic with an excess of 40 third-party complaints, the ruling expected to be finalized later this year.
21   §44 Australia’s Response to the Notice of Arbitration, Under the 2010 Arbitration Rules of the United Nations Commission on International Trade Law
22 Report of the World Commission on Environment and Development: Our Common Future. Document A/42/427
23 Mandy Haggith, Paper Trails: From Trees to Trash: The True Cost of Paper, Random House (2008) 46
24   Michael Yaziji and Jonathan Doh, NGOs and Corporations: Conflict and Collaboration, Cambridge University Press (2009) 151
25   Joseph, Sarah, ‘An Overview of the Human Rights Accountability of Multinational Enterprises’, in Kamminga, Menno T, and Zia-Zarifi Saman (eds), Liability of Multinational Corporations under International Law (Kluwer Law International, The Hague 2000) 78. Also see Menno Kamminga, ‘Holding Multinational Corporations Accountable for Human Rights Abuses: A Challenge for the EC,’ The EU and Human Rights OUP (2000) 565
26     Muzaffer   Eroglu,   Multinational   Enterprises   and   Tort   Liabilities:   An Interdisciplinary and Comparative Examination, Edward Elgar Publishing, 1 Jan. 2008, 124
27 Filártiga v. Peña-Irala, 630 F.2d 876 (2d Cir. 1980)
28 Op. Cit., Eroglu 124
29 The United States ratified the Convention Concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour. See Michael Koebele, Corporate Responsibility under the Alien Tort Statute: Enforcement of International Law Through US Torts Law, Martinus Nijhoff Publishers (2009) 139.
30 Theodore Harney MacDonald, The Global Human Right to Health: Dream Or Possibility? Radcliff Publishing (2007) 89
31 Jonathan Cohen, Togo, Borderline Slavery: Child Trafficking in Togo Human Rights Watch (2003) 8
32 The Associated Press, Fishermen Slaves: Human Trafficking and the Seafood We Eat, Mango Media Inc., (2016)
33 Ibid.
34 Anna Hutchens, Changing Big Business: The Globalisation of the Fair Trade Movement, Edward Elgar Publishing (2009) 77
35 John M. Kline, Ethics for International Business: Decision Making in a Global Political Economy, Psychology Press (2005) 153
36 John M. Kline, Ethics for International Business: Decision Making in a Global Political Economy, Psychology Press (2005) 153
37 International Code of Marketing of Breast-milk Substitutes, World Health Organization, Geneva, 1981
38 Ibid.
39 K. Aswathappa, International Human Resource Management, Tata McGraw- Hill Education (2007) 293
40 Andrew Delios and Paul W. Beamish, International Business: an Asia Pacific Perspective, Pearson/Prentice Hall (2004) 300
41 Kadic v. Karadžić 70 F.3d 232 (1995).
42 Ibid.
43 John G. Fleming, An Introduction to the Law of Torts, Clarendon Press (1985) 410
44 Scott v Davis (2000) 204 CLR 333, 4; also see Launchbury v Morgans [1972] UKHL 5; [1973] AC 127 at 135 and International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co.(1958) 100 CLR 644, 652.
45 Doe v. Unocal, 395 F.3d 932
46 Op. Cit., Eroglu, 124
47   Sarah Joseph, Corporations and Transnational Human Rights Litigation, Bloomsbury Publishing (2004) 69
48 Daniel Aguirre, The Human Right to Development in a Globalized World, Ashgate Publishing, Ltd., (2008) 259
49 Doe v. Unocal, 963 F.Supp.880 (C.D Cal. 1997)
50 Ibid.
51 William Thomas Allison, My Lai: An American Atrocity in the Vietnam War, JHU Press (2012) 43
52 Carl Boggs, Masters of War: Militarism and Blowback in the Era of American Empire, Routledge (2013) 209
53 Valerie Plaza, American Mass Murderers (2015) 84
54 United States v. Captain Ernest L. Medina (1971)
55 Rule   153,   Customary   International   Humanitarian   Law,   “Command Responsibility for Failure to Prevent, Repress or Report War Crimes”
56 John Cheverie, United States Court Finds Unocal May Be Liable For Aiding and Abetting Human Rights Abuses in Burma, Human Rights Brief (Vol 10:2) 2002
57 Kai Ambos, Treatise on International Criminal Law: Volume 1, OUP Oxford, (2013) 100
58 Beth Walston-Dunham, Introduction to Law, Cengage Learning (2011)
59 §199 Furundžija (IT-95-17/1)
60   John G. Dale, Free Burma: Transnational Legal Action and Corporate Accountability, U of Minnesota Press (2011) 248
61 Rasit Kaya and Baris Cakmur, “Politics and the Mass Media in Turkey,” Turkish Studies, (Vol 11:4) 521-537, December 2010
62 Marylee Stephenson, The Galapagos Islands and Ecuador, 3rd Edition: Your Essential Handbook for Exploring Darwin’s Enchanted Islands, Mountaineers Books, 28 Sep. 2015
63 Kate Miles, The Origins of International Investment Law: Empire, Environment and the Safeguarding of Capital, Cambridge University Press (2013) 141
64 Aguinda v. Texaco, Inc. 33 ELR 20010
65 Aguinda v. Texaco, Inc. 33 ELR 20010
66 Malcolm J Rogge, Towards Transnational Corporate Accountability in the Global Economy: Challenging the Doctrine of Forum Non Conveniens in Re: Union Carbide, Alfaro, Sequihua, and Aguinda, Texas International Law Journal, Texas International Law Journal [VOL. 36:299] 2001
67 Almut Schilling-Vacaflor, New Constitutionalism in Latin America: Promises and Practices, Routledge (2016)
68 They also held proceedings in a separate case claiming that Ecuador breached the Investment Agreement and the Settlement Agreement between Texaco and the State.
71 https://www.chevron.com/ecuador/
72 Criminal Justice in International Society By Willem de Lint, Marinella Marmo, Nerida Chazal, Routledge (2014) 238
73 Ibid.
74 Cheryl J. Baldwin, The 10 Principles of Food Industry Sustainability, John Wiley& Sons (2015) 29
75 Ibid.
76 Kinley, David; Joseph, Sarah — “Multinational corporations and human rights: questions about their relationship” [2002] AltLawJl 3; (2002) 27(1) Alternative Law Journal 7
77 Note that it is actually illegal in Turkey to claim that there ever was an Armenian Genocide. The Bill itself in France would have made it a criminal offence if one denied that there was a genocide.
78 Evangelia Axiarlis, Political Islam and the Secular State in Turkey: Democracy, Reform and the Justice and Development Party, .B.Tauris, (2014) 126

Dangerous Liaisons in Syria: Is it a Civil War or a Proxy War?

The aggression involving the mass deportations and displacement, ethnic cleansing and evacuations of millions in Europe during World War Two, along with post-war border changes, continued population expulsions and repatriations meant that the prolonged chaos required common standards that would heal the hostilities and build bridges to support people seeking asylum from persecution. The violations against human rights values as expressed by the United Nations Charter of Human Rights[1] along with the precedents set by the Nuremberg Trials meant that the post-war crises in Europe required a multilateral treaty that defined the status of a refugee and the responsibility of state parties to ensure that they grant asylum and uphold the duty to protect all people no matter their nationality. By 1951, the Convention Relating to the Status of Refugees was approved and recognises the right of all people to seek asylum and to be treated fairly and without discrimination. It defined a refugee as having a well-rounded fear of being persecuted and unable to return to country of former residence due to the likelihood of persecution.[2]

The Convention has since been subject to one amendment via the Protocol Relating to the Status of Refugees (1967) that removed the geographic limitations and enabled a universal reach ahead of the global crises taking place outside of Europe. This included the Middle East particularly after the Six-Day War in 1967 in Israel where the implications of the war increased the pre-existing millions of Palestinian refugees that remain in camps in Lebanon, Jordan, Syria, the Gaza Strip and the West Bank, including East Jerusalem.[3] Continuous hostilities in Iraq, Yemen and Syria and the growing number of forcibly displaced persons from predominately Muslim countries as well as internally displaced requiring humanitarian assistance grown exponentially that numbers of displaced from Syria alone have been estimated at 12.5 million.[4] Of this total, over 1 million Syrian refugees sought protection in Lebanon along with 655,675 in Jordan[5] and both countries are not party to the Convention Relating to the Status of Refugees. With the massive refugee crises exposing the failure to cope with the current framework together with the inappropriateness of international refugee law regulating the influx, considerations about the effectiveness of the Convention and the evolving nature of today’s refugee issues has called for the adoption of new changes to pre-existing international protection regimes that understand changes methods of modern warfare and the relationship between Islam and Democracy.

The modern history of Syria is fairly unique in the Middle East, particularly because those that have held the greatest control over the last century following the dissolution of the Ottoman Empire have been the Alawi, a form of Shiite Islam and thus a Muslim minority. For the sake of brevity, you can read in detail my historical comparative between Turkey and Syria here in addition to my analysis of the Syncretistic religions of the Near Eastern region here. France initially occupied areas of the Near East including Lebanon and Syria, but with ongoing sectarian violence and finally the fall of France to the German Nazis during World War Two, a series of favourable events particularly with British authority now playing a role in the region enabled the independence of Syria, officially proclaimed in 1945. Prior to this, France provided the Alawis with the opportunity to access political decision-making during the difficulties that the French faced with sectarian violence in return for their support. Developments in transport and education enabled the historically isolated Alawi community particularly from the Latakia region – who have had a long history of persecution by the Sunni majority – to access to the rest of the country along with positions in the military, factors that reinforced and mobilised social and political solidarity. As such, power was conversely afforded to the Alawi minority over the Sunni majority as the authority of the military strengthened, a military controlled predominately by the Alawi and after a number of coups finalised by the 1963 Syrian coup d’état, the Ba’ath Party seized control of the country.

The hostilities continued in the region including internal leadership upheavals and the ruthless damage against the Syrian armed forces by Israel’ powerful display of military prowess in 1967; in six days, the Israeli forces seized the Golan Heights, destroyed the Egyptian Army and captured the Sinai peninsula and a number of other assaults that incapacitated Syria to defeat. This finally led to the revolution led by Hafez al-Assad who remained President of Syria for decades after 1971 when he – at the time stood as defence minister – overthrew president Noureddin Mustafa Ali al-Atassi and his right-hand Deputy General Secretary, Salah Jadid, the latter – due primarily from the influential and powerful role he played politically – had attempted to remove al-Assad and ultimately backfired. Russia’ political involvement in the country was clear at this time, particularly with Jadid’ relations with the Eastern Bloc and plans to strengthen ties with communism; Nuritdin Mukhitdinov as Soviet Ambassador to Syria playing an influential role in developing closer ties to Russia. Providing armament – becoming the main supplier – and permitting the Russians to lease a naval facility in Tartus, Syria remained an ally as part of Russia’ Cold War efforts against the United States, the latter along with their pre-existing relations in the Middle East particularly with Saudi Arabia, Israel and Turkey initiated further tensions with Syria.

The deadly arms race in the Middle East is an example of politically and religiously fuelled competition in the region. Russia has become the main supplier of arms to the Assad regime, recently deploying advanced S-400 air defence systems to Syria [allegedly to protect their naval base] that is comprised of mobile missile launchers capable of detecting flying targets and effectively providing the country with battery capabilities that boosts its defensive security, effectively making non-stealth jets inoperable.[6] Similar missile systems were recently delivered to Iran, altering the security balance by closely matching the military powers of Israel and the US, which could thus permit an uninterrupted pursuit of dangerous domestic initiatives including the advancement of its controversial nuclear development program. Though United State’ fleet has been upgraded to overcome the strengthening defence through the development of new stealth assets and long-range bombers including LRS-B or B-21 Raiders,[7] it nevertheless poses a concern that could shift the dynamics and enable Iran to pursue nuclear technology independent of any lethal responses. Hidden under the guise of a peaceful source of power, nuclear facilities that have the technology capable of developing weapons along with a joint Russian-Iranian nuclear cooperation could clearly engender a real shift in the balance of power in the region. This is particularly hazardous for Israel, with Iran consistently threatening to ‘wipe Israel off the map’[8] where former Ambassador to Syria Hojatoleslam Akhtari stating, “[t]he only way to subdue the enemies is by refusing to compromise on the goals of the resistance and to remain strong; the future of criminal nations such as the Zionists will be erased from the history books.”[9] Consistent deterioration in diplomatic processes on the nuclear question with Iran vis-à-vis violations of the Paris Agreement – a framework by the United Nations on climate change with assessments on nuclear infrastructure as part of the mitigation strategies to reduce global warming – raises legitimate concerns as to just how dangerous Iran’s military capabilities has become.

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Northrop Grumman B-21 Raider (LRS-B) Long Range Strike Stealth Bomber

The United States’ place in the Middle East is not without its controversy, particularly its involvement in Iraq, oil politics and its relationship with Saudi Arabia. Operation Desert Storm in January, 1991 was a military operation against Iraqi forces in Kuwait where over 100,000 people were killed. Though a strategic success, it was ultimately a failure in the aftermath since the violence continued long after; following the encouragement of minorities in Iraq – including the Shiite and Kurdish minorities – to weaken the regime through rebellion by supplying armament, the United States was party to the ultimate massacre of women, children and men as part of Saddam Hussein’ brutal suppression. The USA grossed $36.2 billion on foreign weapons sale in 2014 and controls almost 50% of the global market on weapons, with Russia coming in second.[10] Is it just an economic battle – one that would afford the greatest power – between two states utilising the differences in political philosophies to justify the onslaught of continuous violence and displacement of millions of lives? Following the Ba’ath party’ successful coup against the leadership of Abdul al-Karim Qasim with the support of the USA, by 1968 a bloodless coup led by General Ahmed Hassan al-Bakr meant that the relationship and position of USA deteriorated in favour of the Soviet presence.[11] To challenge this, the USA sponsored – along with the support of the Iranian government at the time due to border disputes – the Kurdish people with armament and the initiative to rebel in exchange for autonomy. It was a fatal and unfilled promise for the Kurds.[12]

The relationship between the United States and Iran dates long before the Iranian revolution, the former known to having a hand in the 1953 coup d’état where documents verify how both the USA and Britain assisted the coup against Mohammad Mosaddeq and replaced by the preferred Shah.[13] It was not long after that oil in the region was privatised with the USA and Britain in control. The growing Soviet influence only compelled further attempts to infiltrate power in the Middle East, including Lebanon where the 1958 crisis exposed President Camille Chamoun’ close relations with the USA and despite the growing frustration between sectarian groups and pro-Western imperialism, President D. Eisenhower nevertheless intervened under what was considered the need to protect Lebanon and the Middle East from the ‘threat of communism’. It is the same reason for the United State’ funding of the Mujahideen in Afghanistan. The Iranian Revolution solidified a massive shift in the region when the Islamic Republic of Iran was born through the leadership of Ayatollah Khomeini, and though the latter publically confessed an incompatibility between Islam and Communism, deteriorating relations with the United States only compelled closer ties with both China and Russia. Iran shifted toward a coalition that included Syria and soon found itself participating the foreign factious politics as seen with Houthi rebels in Yemen – a Shia Muslim minority – whom they support to aggravate Saudi Arabia. This led the Saudi government in a multi-national coalition of predominately Sunni-Arab states to restore president Abdrabbuh M. Hadi  of Yemen following the rebellion, leading to the deaths, injuries and displacement of tens of thousands of people and a widespread humanitarian catastrophe of an already impoverished state.

The Saudi influence in the region is undeniable and their stratagem in Syria – by supporting the Islamist rebel fighters in Syria – clear along with Qatar and Turkey. Muslim theologian Muhammad ibn ʿAbd al-Wahhab and author of Kitab at-tawhid or the ‘Book of Unity’ and fundamental to the teachings of Wahhabism, took a puritanical approach to the teachings not just of the Qur’an but also of the hadiths and became the primary power in the Saudi region following the dissolution of the Ottoman Empire. The Saudi State has long promoted Wahhabi Islam, an ultra-conservative form of Sunni Islam, and is a major provider of military and financial assistance toward a number of group that adhere to Islamist ideology, channelling assistance through ‘charitable’ funds to poorer, Islamic states that often aid in the construction of mosques and training Imams. In a damning report, the European Parliament[14] identified the Saudi Wahhabi regime along with the Salafi – which is known to be an extension of the former – as supporting global rebel groups with arms and fiscal provisions and thus making them better equipped and capable to fight effectively on the ground, which is a clear advantage in areas of the Middle East for instance. “From the most nebulous organisations to the most organised ones, from smaller cells to the most complex networks, no country in the Muslim world is safe from their operations, crude or sophisticated as they always aim to terrorise their opponents and arouse the admiration of their supporters.”[15] I hardly think a country where women have no rights and people continue to be beheaded for supposed crimes such as witchcraft would have the moral standing to cultivate an ethical approach to international relations.

United Nations Security Council Resolutions on the civil war in Syria where consistently vetoed against by both Russia and China, including S/2016/846 whereby Russian representative Vitaly I. Churkin stated: “After destroying Libya, the troika of permanent Western members of the Security Council had turned its sights on Syria. Furthermore, the French delegation had not put forward a single constructive initiative,” statements that were furthered by United Kingdom with Matthew Rycroft reacting with, “[t]he current tactics being used in Aleppo under the guise of combating terrorism were turning the situation into a catastrophe. The Russian Federation’s commitment was hollow and a sham. Instead of investing in peace and diplomacy, it had cooperated with the Syrian regime, and it was Syrian civilians who bore the brunt of that complicity.”[16] Accusations that the Russian Federation were derailing the resolutions and preventing diplomacy to immediately end the bombing of Aleppo, but Syrian representative went on to defend Russia purporting that the draft text from France was intended to fuel the crisis and enable France the “golden opportunity to revive its colonial power.”[17]

Really, just France? It is clearly not the only country that cares little enough for the millions of innocent women, children and men in the Middle East to say qu’ils mangent de la brioche!

Water politics is certainly controversial as the Taurus mountain regions in Turkey sources the Tigris and Euphrates rivers that provides the water for Syria and the Persian Gulf, threatening the water supply with the effective control of its flow through the construction of dams including the Atatürk Dam funded in part by the United States. The risk is not a joke neither do deterrence theories protect the probability of an outbreak of devastating consequences as exemplified by the drought in Iraq following the Keban Dam built in Turkey and the Tabqa Dam (built in response with the support of Russia) in 1975. In 1990, threats to bomb the Atatürk Dam following vehement protestations from Syria and Iraq due to the temporary reduction – thoughts its effects certainly felt by the two states – of the Euphrates river to fill the dams reservoir had Turkey threatening to completely cut the flow of water; the water flow is currently at 2/3rds of its former capacity prior to the dam. The scarcity of water in the region itself has had devastating effects and to utilise the dam as an instrument of war could lead to a much greater struggle and risk; the former, further displacement, sanitation and environmental disasters that may result in the deaths of millions of lives, whilst the latter and of greater concern, the direct involvement of China – who supports Russia, Syria and Iran – directly into the conflict.

 atatu%cc%88rk-dam-turkey-courtesy-dursun-yildiz

Atatürk Dam has reduced the water flow down the Euphrates-Tigris by 1/3 than what it was prior to its construction.

It would almost appear that since the decline of Ottoman power – an empire that stretched for hundreds of years in the region – the Middle East as become a hunting ground for gruesome Western hands salivating over the accessible fiscal rewards, manipulating authoritarian puppet states, fuelling religious tensions and sponsoring sectarian divisions that result in a monopoly of power struggles that intensifies hatred and has led to the deaths of hundreds of thousands of people in the region. The religious divisions between Shia and Sunni Islam only enabling foreign interference. Now with Trump inaugurated as President of the United States of America, one wonders how his mindless leadership supported by the conservative evangelical Christians who have monolithic, premillennialist ideas of the Second Coming as well as a very strong influence on US Foreign Policy, will effect pre-existing adversaries between the superpowers? And what about China, sitting passively in the background as it watches from over the Caucasus Mountains? Are they believed to be Gog and Magog, the devil ousted from Heaven and who deceives (does anyone suspect?) the nations ‘to gather them together to battle: the number of whom is as the sand of the sea?’ One wonders about the Chinese army multiplying and the consistent increase in spending on military growth with the People’s Liberation Army (PLA) the world’s largest standing army. Was Napoleon Bonaparte a military genius or a prophet when he said: “China is a sleeping giant. Let her sleep, for when she wakes she will tremble the world.”

Has the trumpet been blown?

 

 

[1] Article 14, The Convention Relating to the Status of Refugees
[2] Article 1 (a)(2)
[3] Brahma Chellaney, Water, Peace, and War: Confronting the Global Water Crisis, Rowman & Littlefield (2015) 50
[4] Syria Regional Fact Sheet: http://www.care.org/sites/default/files/documents/CARE_Syria_Regional_Crisis_Fact_Sheet_22092015.pdf
[5] https://www.amnesty.org/en/latest/news/2016/02/syrias-refugee-crisis-in-numbers
[6] https://www.rt.com/news/361586-russia-s300-supplied-syria/
[7] http://nationalinterest.org/blog/the-buzz/americas-lethal-new-b-21-vs-the-b-2-stealth-bomber-15352
[8] Mark A. Tessler, A History of the Israeli-Palestinian Conflict, Indiana University Press (1994) 393
[9] Dwight Jones, The Judas Factor: As Judas Betrayed Christ, America Will Betray Israel, Charisma Media (2015) 113
[10] http://time.com/4161613/us-arms-sales-exports-weapons/
[11] Bryan R. Gibson, U.S Foreign Policy, Iraq, and the Cold War 1958-1975, A thesis submitted to The London School of Economics and Political Science (‎2013)
[12] Bryan R. Gibson, Sold Out? US Foreign Policy, Iraq, the Kurds, and the Cold War. Palgrave Macmillan (2015)
[13] https://www.theguardian.com/world/2013/aug/19/cia-admits-role-1953-iranian-coup
[14] European Parliament, “The Involvement of Salafism/Wahhabism in the support and supply of arms to rebel groups around the world” Directorate-General for External Policies of the Union, Directorate B [Policy Department]: EXPO/B/AFET/FWC/2009-01/Lot4/23 June/2013.
[15] Ibid
[16] https://www.un.org/press/en/2016/sc12545.doc.htm
[17] Ibid.

 

 

That Awkward Moment in Turkish Politics

Perhaps I am being somewhat suspicious but well after a decade of factitious ideological politics, the recent failed coup in Turkey could almost be considered theatrical, a prominent show of untruths entwined within truths that one can no longer differentiate between the two. The ‘truth’ itself – whatever that may be – may just be too daunting to face that the majority would subconsciously prefer and even deliberately avoid confronting it so as to maintain a sense of serenity that divisive politics affords the ignorant. That is, othering imparts a sense of relief for many who require tangible justifications for their subjective foolhardiness. Subjectivity being intangible requires conventional points of reference so that feelings – such as fear – make sense and become transferrable, often to blind submission either implemented by politics or society, or hatred because of individual evil. Whilst people may call it determinism, they choose whether consciously or not (the unconscious mind is still a form of consciousness) to paradoxically never choose, that is, they choose to be slaves.

This schism of opinions that stand either for or against Recep Tayyip Erdogan – current president of Turkey and former Prime Minister – is riddled with suspicions, distrust against him and his party, distrust for his intentions to control the military, distrust that a gradual implementation of Islamic culture is being enforced despite Turkey’s history since the time of Kemal Ataturk. Blaming cleric Fethullah Gülen for the coup, lashing out against the CIA among many other ridiculous displays held in the media – a media said to be controlled by Erdogan himself of which I will explain a little later – the coup being botched by an elite, world-class military experienced in coups makes one really wonder about what is going on. The Justice and Development Party (AKP) emerged as a saviour during a difficult economic and social time in Turkey, encouraging the prospect that they can embrace both Islam and Democracy under the banner of human rights and freedoms and effectively implement reforms to complete the Copenhagen criteria toward EU accession. These reforms included legislative changes through amendments of the constitution underlined by the strengthening of an independent judiciary and the advancement of freedoms and cultural rights. As said by Erdogan himself, “one of the greatest common denominators of mankind’s existence on earth is the development of humanistic values over centuries. Universal values that are embodied in the concept of democracy and supported by principles such as human rights, rule of law, good governance are the product of the collected wisdom derived from different civilisations.”[1] Such discourse on responsibility and gaining prominence by acting as an example in a complex global environment has consistently been reiterated by the AKP and while constitutional reforms along with a number of ratified international conventions have since taken place, the current social and political dynamics prove such discourses to have been nothing but mere flatteries without weight to the mechanisms that strengthen the principles of human rights. The almost schizophrenic movement between an uncompromising, conservative paternalism with the conservative-moderate political model appears to be a type of Newtons Cradle between a want for EU accession and an opportunity to strengthen a neo-Ottoman agenda. The AKP has either way attempted to strengthen legitimacy by showcasing popular domestic support and representing themselves as significant actors of democracy and human rights, an image recently proven by social media to be fictitious. While it is evident that media representation of the party is one-sided with Turkey becoming notorious for arresting journalists and restricting the independence of journalism and the media in its entirety, social media has become an expressive platform to expose the discontent displayed by the population.

 

Historically, Turkey was born out of the ashes of a failing Ottoman Empire, the late nineteenth century initiated the beginnings of Turkish nationalism through Jöntürkler or the Young Turks, when the underlying complexity between “a territorial, an ethnic or a religious basis for the ‘nation’”[2] promoted discourse on political identity and what it meant to be ‘Turkish’. It was not long afterwards that the proclamation of the Turkish Republic headed by Mustafa Kemal Ataturk was established following intense international and domestic upheaval including the First World War, the Balkan Wars and the dissolution of the Ottoman Empire, together with domestic strife such as the Sheik Said rebellion in the Eastern provinces. While the efforts and overall establishment of the Turkish parliament can be considered a success, the contradictory nationalist ideas particularly between Islamism and Turkism along with violence against ethnic and religious minorities proved the application of this new Turkish identity was initiated through an aggressive state nationalism in an attempt to submerge resistance.

As such, intense cultural and social transformations were implemented to change the structural dynamic of the new country from the old culture, the first being the abolishment of the caliphate that had been the primary system of governance in the region for centuries. Other instituted policies included the control of the appointments of imams, the abolishment of religious courts and schools, and other laws such as enacting the prohibition of any religious interference within the Grand National Assembly and Turkish politics.[3] While such political and cultural reforms no doubt had an impact on the calculated efforts to transform civic society and culture by strengthening loyalty to the new Turkish nationalism, the schism between secularists and Islamists proved the acceptance of the new ideology was indeed a complicated endeavour.

The one-party system changed in the late 1940’s toward a multi-party system and this process of democratisation exposed the broader Islamic sensibilities and cultural norms of the citizens. Consolidating the transformation toward democracy also allowed the country’s marginalised an avenue for political participation and thus this new opportunity never previously afforded to a public desirous to engage in a politics of identity became the basis of confrontational movements as part of this transformative process. Consequently, particularly during the late 1970’s, Turkey experienced serious social and political upheaval between what became known as the ‘leftists’ with the ‘rightists’.[4] With the propagation of Islamic nationalism by identifying Turkish nationalism with Pan-Turkic identity, an ultranationalist right-wing ideology founded by political leader Alparslan Turkeş and strengthened by the youth-wing (the terror organisation Grey Wolves), the determination to fight against what it saw as the growth of left-wing humanism escalated the violence.[5] Political parties such as the Aydinlar Ocaği or the Hearth of the Enlightened (AO) and the National Salvation Party (MSP) mobilised support and increased social turbulence. The evolution of the violence was amplified with the changes from a predominantly rural context toward an urban environment with mass population movements to the cities for employment causing poverty and squatter settlements. A ‘clash’ of various groups illustrated by serious street violence between the Alevi and Sunni, Kurdish, non-Turkish such as Muslims from the Balkans, Communists and right-wing Ultranationalists among others proved that espousing Turkish nationalism and identity within a democratic space clearly contained hostilities that had not been effectively uprooted.

This period of unrivalled turmoil led to the 1980 military coup d’état, whereby the Turkish military took control of the government and closed down political parties, banning leaders from political interference and revoking the constitution as part of its sweeping reforms of the country.[6] The intervention of the Turkish armed forces into social and political life during the most tumultuous period of its history can be viewed as both a breakthrough since the military are seen to have saved the country from an impending civil war and become the bastion of Kemalism, but in doing so implemented a harsh regiment of torture and extreme violence that found hundreds of thousands arrested, executed or dying in custody.[7] Recent developments found the final two surviving military leaders General Kenan Evren – who served as president during the junta – along with Tahsin Sahinkaya arrested and sentenced to life imprisonment for the brutality of the military during that period.[8] The several years of martial rule was an attempt to transition Turkish society and governance toward democratisation; the first and significant step required was a complete overhaul of the Turkish constitution and restoring a more effective civilian government.

Other changes included basic education of Islamic principles and morals,[9] whereby military authorities purported that religious education had been corrupted by leadership and as such became part of the cause of the political and civic violence. Additionally, neo-liberal economic reforms based on individualistic and profitable activities – perhaps unintentionally – developed as a causal effect from the trauma of the radical changes that were implemented during the military coup and as such an increase in political disengagement and fear of losing property and family members compelled a change in economic processes.[10] Military interference continued particularly during the 1990’s where ideological and ethnic violence reared its ugly head once again, particularly the PKK and the Kurdish-Turkish conflict, mass violence such as the Sivas massacre, along with “deep state” suspicions that led to the death of President Turgut Ozal with assassinations of important military and judicial figures. These suspicions have been solidified with the Ergenekon trials that found the indictment of apparent members of a clandestine secularist organisation that were secretly plotting against the Turkish government.[11] On the contrary, the Adelet ve Kalkinma Partisi [AKP], the popular centre-right political party founded by Recep Tayyip Erdogan has been consistently accused of implementing an Islamist agenda by addressing domestic lawmakers to execute changes against restrictions set by secular policies, foreign policy statements that imply a neo-Ottoman stance, and as said earlier, gradually restricting the power of the military that some imply to be a way to provide him with the freedom to continue strengthening this agenda hiding under the banner of international obligations toward EU accession.

It is essential to understand the influence media has with social life and thus arguably it’s often controversial relationship with politics since “almost everywhere in the world, most of the media is still politically differentiated along with general political orientations.”[12] To have named Fethullah Gülen, a Sufi preacher of peace and writer, the mastermind behind the coup and to label him a terrorist, whereby social media suddenly opened and went on the attack, is an expression of why identifying the nature of this relationship between politics and society is necessary. Ascertaining the degree of political influence and intervention on reporting and especially legal regulations that encourage partisan content through restrictions to freedom of expression is a model that can often be causally linked to the historical conditions of the country in question. Thus, in order to understand the distinct Turkish experience along with the necessary and proper conceptualisation of the failure to consolidate human rights norms at political and cultural level, it is essential to feature historical and social factors that influence and ultimately undermine the effective habituation of democratic principles. These have been factored into several important cleavages, which include 1. Military and beaurecratic elitism and the uneasy relationship with the citizens, 2. The schism between Sunni Islam and Shia Islam [primarily Alevi], 3. Dominant ethnic rivalries namely between the Kurds and the Turks.[13]

Thus the recent and tumultuous history of the country and the constant suspicions against the potential hidden intentions vis-à-vis political, ethnic or religious leanings is linked to the reservations raised against media communication and freedom of speech. It does not help that the polarisation of these ethnic and religious cleavages undermine the democratic transformation within Turkey, and that may be exactly what is wanted. The Ottoman past remains highly influential, clearly visible with the symbolic relationship between Turkey’s military and government with Turkey itself considered the father, a preference for a paternal and perhaps authoritarian management of civil affairs rather than democratic. Whilst defining ‘democracy’ is certainly ambiguous and perhaps to a degree the interpretation is relative to the customs and conventions in the context of each national government and its relationship with and regulation of its citizens, religious and ethnic cleavages rooted in Turkey’s unfavourable history that proves the acclimatisation of even the most basic tenets of democracy such as the structure and equitable distribution of executive powers along with the effective participation of and guaranteed rights of its citizens appears to have become crystallised in beaurecratic elitism, perhaps itself rooted in the former tradition of Ottoman centralism. While democratic progress and achievements have taken shape, they have nevertheless failed to consolidate culturally and appear superficial and at best mere “instruments of convenience.”[15]

Rooted in the current legal and political framework, not only is it clearly visible that political elites exercise a formulation of ownership policy that nevertheless manufactures independence and sincerity to pacify sceptics, Turkish media laws are also marked by a historical relationship with censorship policy that illustrates a continuation of civic suspicions. The onset of the Tanzimat period during the Ottoman Empire can be considered the commencement of press related activities with newspapers such as the French Bulletin des Nouvelles in 1795, the Turkish-Arabic Vakay-I Misryiye in 1828, and the first Turkish Takvim-I Vekayi in 1831 under the reign of Sultan Mahmud II being successfully published and circulated. Such activities only increased over time and eventually shaped the Matbaa Nizamnamesi (1857) that regulated printing houses and publishing materials. However, the fractured condition of the empire particularly during the reign of Abdul Hamid II [1842-1918] who imposed Draconian censorship against current affairs or any liberal political views, further censored the former press regulations whereby in 1909 it was replaced with Matbuat Kanunu [Press Law] and by extension was the continuation of the former regulations but with greater restrictions determined by the Ministry of the Interior and continued long after. “Böylece 45 yil yürürlükten kalan 1864 Matbuat Nizamnamesi;nin yerini alan ve 32 yil sonar 1931 Matbuat Kanunu’yla yürürlükten kalirilacak olan 1909 Matbuat Kanunu yayilanmiştir.”[16] The Hamidian system established the Domestic Press Directorate (Matbuati Dahiliye Müdiriyeti) that included, “a director with five assistants; five examining clerks (mümeyyiz); more than a dozen inspectors (müfettiş) responsible for supervision of newspapers, printing establishments and theatres,”[17] and rigorously examined content of the press and periodicals to ensure censorship both pre and post-publication. The regulations were arbitrary and lacked specificity or concrete guidelines, thus remained dependant on the examination and decisions of officials usually in the context of current affairs.[18]

Attention and discussions relating to the absence of Internet laws was realised in 1998 with the prosecution of 18-year-old Emre Ersöz, who mistakenly criticised the national police for the extreme and unnecessary violence against a group of blind protestors.[19] The charge itself was for “[p]ublicly insulting state security forces” on a Turkish forum Turknet[20] and he was prosecuted with a suspended sentence of ten months imprisonment under Article 159 of the Turkish Penal Code. Article 159 could at the time imprison for up to six years for publicly denigrating Turkishness. While Article 301 made a series of changes from Article 159, the ambiguity of the language and the uncertainty surrounding the interpretation of the clauses did not modify the potentially detrimental impact the code had on human rights and freedoms. Claudia Roth, the vice-president of the German-Turkish Inter-parliamentary Friendship Group and Germany’ Greens politician stated that the death of Armenian-Turkish Journalist Hrant Dink is linked to Article 301 of the Turkish Penal code, as the latter strengthens nationalism.[21] Nationalism, freedom of expression and human rights have remained key issues vis-à-vis Turkey’s democratisation process, with remnants of the past, global culture and modernisation together with religion, civic and ethnic nationalisms all playing a role in the popular attitudes and mobility – or lack thereof – of the population.

On one end, there certainly does appear a risk to security with the continued conflict of ideological positions between ethnic and religious groups that unlike more liberal and democratic countries where such freedom of expression could have little direct impact or consequence, the risk of violence in Turkey appears to be much higher. For instance, the Sivas Massacre found 35 dead after Islamic Salafists set fire to a hotel where Alevi intellectuals were holding a cultural festival, one such intellectual purporting to have organised a discussion on the Satanic verses by Salman Rushdie.[22] In the case of Gündüz V Turkey[23] at the European Court of Human Rights, Müslüm Gündüz campaigned on live television for the implementation of Sharia laws and criticised secularism, with the court finding it favour of Gündüz (under article 10 of the convention) defending Sharia without inciting violence cannot be considered hate speech, his criminal conviction of two years imprisonment under Turkish law thus in violation of ECHR.[24] The margins of defending Sharia, which is known for intolerance and having the potential impact of inciting violence and hatred expresses the difficulty of ascertaining what justifies as hate speech according to the history and culture of a country like Turkey. The Sivas Massacre – where police and fire brigades that were at the scene during the incident, did little to protect, prevent or assist – highlights the impact and the risk public communication has in Turkey and the lack of human right commitments at a social and cultural level. Censorship can in addition also ensure that young people are not exposed to content or information that could be detrimental to their wellbeing, that racial vilification and hate speech is controlled as well as reduce crimes such as violations of copyright laws, rampant spamming and other security concerns.

On the other hand, however, the restrictive line to freedom of speech and communication is crossed when too much government control begins to limit access to information, hindering websites and removing content and thus inhibiting knowledge and current affairs. For instance, failure to highlight or broadcast activities that prove political opposition or that criticise governance and legislation. This suspicion that the liberalisation of the press had been infiltrated by political influence was solidified with the recent Gezi Park Protests in Istanbul that caused domestic and international outrage at the handling of peaceful protesters, a story rarely mentioned on popular television broadcasters in Turkey during the tumult. Prior to the enactment of internet censorship Law No. 5651, media reports on child pornography was sweeping that some claim was intentional to ensure support for the law, as it “came across as an orchestrated effort.”[25] In addition, there are growing concerns at the censorship and restrictions against journalists and a liberal and independent media, with many journalists losing their jobs amid political pressure and yet others being arrested or targeted in arbitrary prosecutions under anti-terrorism legislation [Law 3713]. Turkey has become notorious for being a country arresting local and international journalists and while state control of the media is not new, the AKP agenda has intensified. “There has been state influence on journalists in Turkey for decades, but the situation has deteriorated, in three ways, since the AKP won second term in 2007… by abusing the legal framework to criminalize Kurdish journalists, by instrumentalizing a major political investigation – Ergenekon – to prosecute dissenting journalists, and by exploiting its economic relationships with media conglomerates to engender self-censorship in the press.”[26]

The Radio and Television Supreme Council (RTÜK) have been noted to place pressure on channels that are critical against the government and Turkey’s major broadcaster TRT is known for remaining one-sided and propagandist toward the AKP. CNN Turkey 5N1K program terminated journalist Murat Aksoy’ position, for instance, following his comment that the AKP should investigate corruption.[27] In 2000, the Telecommunications Authority under Law No. 4502 was established due to local and international pressure to liberalise the telecommunications industry, however legal provisions expose a failure to safeguard independence and political interference, which is clearly visible with the provision that purports members of the board are appointed by the council of ministers.[28] During this period, a draft bill attempting to regulate internet publications by including it under the same umbrella of legal restrictions that was already governing television broadcasting, print media and radio had risen to the fore and while controversy arose during this period, by 2002 amendments to Law No. 4676 were passed that included regulations vis-à-vis internet publications.[29] The monopoly between the state, private media companies and the economic value media has neglected to focus on interests of the public or human rights and freedoms. By 2007, Law No. 5651 on the Regulation of Publications on the Internet and Suppression of Crimes Committed by means of such publications came to force and access to sites – including Youtube – were consequently blocked or regulated. The law itself provided a catalogue of crimes along with the legal and procedural framework during the investigation and consequent banning of a website, attempting to work within the configuration of the Budapest Convention of Cybercrime, an international treaty that attempts to regulate internet and computer crime (only signed by Turkey in 2014). The catalogue of crimes include the Incitement to suicide (TCK-84), sexual abuse of children (TCK-103), facilitation of the use of narcotics (TCK-190), provision of substances harmful to health (TCK-194), obscenity (TCK-226), prostitution (TCK-227), facilitation of gambling (TCK-228), crimes against Ataturk (Law 5816 for defamation as defined in Article 125 of Turkish Criminal Law) and gambling (under sports law).[30] In addition, Turkey’s Telecommunications Directorate [TIB] was granted the authority to block access to websites without a court order and the scope of what and the reasons behind the banning has not been publically or adequately supplied.

In 2011, a major domestic project was implemented that required all internet users to select a profile [family, standard, domestic, child] as an attempt to filter websites linked to the profile choice.[31] This caused demonstrations against privacy in major cities and the obligatory requirement was eventually changed to a voluntary one. In 2014, amendments to Law No. 5651 was ratified primarily because of the outpour of discontent across Turkey during the Gezi Park protests. It was in the same year that Erdogan vowed to eradicate Twitter, what he referred to as a “menace” to society[32] and such discourse and eventual implementation parallels the AKP political identity of power and legitimacy both locally and internationally. It ensured harsher regulations against social networking and a faster process to ban web content, failing to follow correct procedural consultations as is oft required when amending or passing new laws. In 2015, further amendments continued when the internet became a medium to expose corrupt political officials and other high profile scandals with changes to internet defamation.[33]

From an international human rights scope, several problems are exposed when assessing social media and censorship in Turkey. The first and perhaps primary question is whether social media itself is a human right. The choice to follow and have access to information, to choose your associations and the value the interactive platform has to expression is essential to the rights articulated in International Covenant of Civil and Political Rights. Social networking sites are not public forums in that they are privately controlled and therefore the topic of human rights vis-à-vis social media falls primarily under the banner of freedom of expression, association and information and as such the exercise of such rights carries responsibilities. During the 2011 London Riots, however, where thousands looted and set fire to property in London and other towns following the death of 29 year old Mark Duggan by police, questions were introduced as to the potential of blocking social media in an otherwise Western and liberal country.[34] David Cameron explored the possibility of blocking social media such as twitter, facebook and other internet communication technologies during times of civil unrest.[35] As emphasised earlier, it raises a difficult problem between human rights and national security. For instance, while Turkey ratified the European Convention on Human Rights and Fundamental Freedoms that includes articles which safeguard freedom of expression and the prevention of interference by public authorities, it is essential to point that that 10.2 of the article states that the exercise of such freedoms may be subject to restrictions or penalties as prescribed by the law in the interest of national security, territorial integrity and public safety. Thus, there continues to remain the difficulty of interpreting the agenda and the ambiguity of language used in Turkish law that assess what warrants restrictions and perhaps the reason why accountability and transparency remain vital to the integrity of a democratic society. Accordingly, 80,000 websites as of May 2015 have been banned in Turkey[36] with the reasons behind the decisions lacking clarity and while regulation to the internet may have been necessary to protect the security of the state, it should be within the limitations set by international human rights principles. This lack of clarity has unfortunately made it difficult to ascertain whether the plurality and independence of the media is in serious jeopardy, relying on international cases to outline whether the restrictions are justifiable. There have been a number of cases against Turkey breaching Article 10 of the European Convention of Human Rights. One such case was Ürper and Others V Turkey[37] where the publication and distribution of a series of newspapers were restricted under section 6(5) of Law no. 3713 (the Prevention of Terrorism Act) for disseminating propaganda[38] due to alleged connections or sympathies with the PKK (Kurdish Workers Party). The European Court of Human Rights found in favour of Ürper and Others[39] that the government failed to safeguard freedom of the press. The suspension of their newspapers even for short periods had an impact on the value of the information it intended on supplying.[40]

The bridges between moral laws and democracy have often co-existed on shaky grounds, particularly in Islamic countries. While Turkey views itself as a champion of synthesising Islam with Democracy, the recent events particularly the Gezi Park protests demonstrates that this is not the case. When one considers the power the military has in Turkey being the second largest NATO army to date, to stage a coup that fails as badly as it did in Turkey raises many questions. As Turkey maintains this important and determined separation between religion and a secular government with the Turkish military the backbone to the Kemalist agenda, penetrating and ultimately challenging the separation of powers could leap Turkey into the authoritarian realm that many secularists fear Erdogan is attempting to achieve. Democracy sets the political foundation for the establishment of human rights and fundamental freedoms, raising the problem of whether Islam and Democracy is mutually exclusive or compatible. Social media has thus become a symbol of the right to expression and to obtain information from sources otherwise unavailable in Turkey and the Arab World and itself a voice of democracy. The separation of religion from state has been an ongoing problem, John Locke writing about the social contract theory and why absolute power and governance fails to protect natural liberties. “For no government can have a right to obedience from a people who have not freely consented to it.”[41] Freedom of expression has been one of the key issues in Turkey’s democratisation process. The European Court of Human Rights has found Turkey in violation of the European Convention on Human Rights in a number of cases and the laws of internet censorship contains provisions that continue to violate fundamental freedoms. While legislation against public denigration is not something that is unique to Turkey, with Italy, Poland, Spain and Germany also regulating and convicting under similar laws,[42] variations in the application and interpretation of these laws exist in part from the legal and political history and cultural attitudes of the country in question. This is clearly visible with Article 301 of the Turkish Penal Code relating to the criminalisation against those that denigrate Turkishness, the Republic and institutions and organs of the state. The ambiguous nature of the term ‘Turkishness’ and the various interpretations and definitions particularly by political parties and institutions prove the controversial nature of the term. In addition, justifiable terms that inhibit human rights in the name of security, such as prosecuting freedom of speech under ‘terrorism’ laws is in itself dangerous territory. The lack of transparency as to the number of sites blocked and the reasons ascertaining the ban is certainly not clear, making it difficult to correctly assess and analyse the justifications behind the blockage or ban. If there exists a chance of uniting democratic ideals with religious, economic and political standards, human rights and freedom of expression remains the key component, with social media standing at the forefront of this symbolic unison.

 

 

 

[1] Recep Tayyip Erdogan, “Conservative Democracy and the Globalization of Freedom” Speech at the American Enterprise Institute (January 29, 2004)

[2] Hugh Poulton, Top Hat, Grey Wolf and the Crescent: Turkish Nationalism and the Turkish Republic, New York University Press (1997) 315

[3] Tuğrul Ansay, Don Wallace, Introduction to Turkish Law, Kluwer Law International (2011) 52

[4]Meltem Müftüler-Bac, Yannis A. Stivachtis, Turkey-European Union Relations: Dilemmas, Opportunities, and Constraints, Lexington Books (2008) 304

[5] Gerald MacLean, Abdullah Gul and the Making of the New Turkey, Oneworld Publications (2014)

[6] Elifcan Karacan, Remembering the 1980 Turkish Military Coup d‘État: Memory, Violence, and Trauma, Springer (2015) 139

[7]According to statistics, 650,000 citizens were arrested and taken into custody, with 230,000 placed on trial. 517 were sentenced to the death penality and 50 executed by hanging, along with 299 prisoners dying from ‘unknown’ causes. See The Mobilization of Political Islam in Turkey by Banu Elgur, (2010) 90

[8] Robert B Durham, False Flags, Covert Operations, & Propaganda (2014) 348

[9] Milli Eğitim Bakanlığı Din Bilgisi Oğretimi (Ankara, September 1981). Op. Cit., Hugh Poulton, 181.

[10] Op. Cit., Elifcan Karacan, 162

[11]Ebru Canan-Sokullu, Debating Security in Turkey: Challenges and Changes in the Twenty-First Century, Rowman & Littlefield (2013) 86

[12] Rasit Kaya and Baris Cakmur, “Politics and the Mass Media in Turkey,” Turkish Studies, (Vol 11:4) 521-537, December 2010

[13] Nevzat Soguk (1993) A study of the historico cultural reasons for turkey’s ‘inconclusive’ democracy, New Political Science, 13:1, 89-116,

[15] Ibid.

[16] Doç. Dr. Nurşen Mazici, “1930’a Kadar Basinin Durumu ve 1931 Matbuat Kanunu”, Akdeniz Üniversitesi Fen-Edebiyat Fakültesi Tarih Bölümü Öğretim Üyesi. 1 E Ji. Carr, Tarih Nedir? İletişim Yayınlan, İst. (1987), s.41 137

[17] Carter Vaughn Findley, Bureaucratic Reform in the Ottoman Empire: The Sublime Porte, 1789-1922, Princeton University Press (2012) 253

[18] Ottoman Press: from Tanzimat to early Young Turk period (1830s-1909)

[19]The World Bank, The Right to Tell: The Role of Mass Media in Economic Development, Roumeen Islam (2002) 212

[20]Turkish Teenager Sentenced for Internet Comments; HDN, 6/3/1998:

http://www.hurriyetdailynews.com/turkish-teenager-sentenced-for-internet-comments.aspx?pageID=438&n=turkish-teenager-sentenced-for-internet-comments-1998-06-03

[21] 301 Concerns Resurface During Dink Trials, October 02, 2007:

http://www.todayszaman.com/national_301-concerns-resurface-in-dink-trial_123655.html

[22] Kenneth Christie, Ethnic Conflict, Tribal Politics: A Global Perspective, Psychology Press (1998) 167

[23] Case of Gündüz V Turkey, ECHR, 14/11/2000.

[24]Jane Boulden & Will Kymlicka, International Approaches to Governing Ethnic Diversity, Oxford University Press (2015) 29

[25]Melih Kırlıdoğ and Mustafa Akgül, “Internet censorship in Turkey” Internet Policy Review (Vol 4:2) 2015

[26]Natalie Martin, Security and the Turkey-EU Accession Process: Norms, Reforms and the Cyprus Issue, Palgrave Macmillan (2015) 171

[27]Journalist from pro-government daily fired over TV comments, Jan 12, 2014: http://www.hurriyetdailynews.com/journalist-from-pro-government-daily-fired-over-tv-comments.aspx?pageID=238&nID=60943&NewsCatID=341

[28] Article 8 of Law No. 2813

[29]Jostein Gripsrud, Lennart Weibull, Media, Markets & Public Spheres: European Media at the Crossroads, Intellect Books (2010) 184

[30] Yaman Akdeniz, Report of the OSCE Representative on Freedom of the Media on Turkey and Internet Censorship, Organization for the Security and Cooperation in Europe

[31] Eda Çataklar, Decision of the Internet Authority Concerning Internet Security and Access Restriction, IRIS (2011) 7:1/45

[32] Bissera Zankova, Andrej Školkay, Iliana Franklin, Smart Journalism, lulu.com, 128

[33] New Law to Further Tighten Turkey’s Internet Control, January 24 (2015) Today’s Zaman http://www.todayszaman.com/anasayfa_new-law-to-further-tighten-turkeys-internet-control_370721.html

[34] BBC News, England riots: Government mulls social media controls (11 August 2011):

http://www.bbc.com/news/technology-14493497.

[35] Ibid.

[36] Op. Cit., Melih Kırlıdoğ and Mustafa Akgül

[37] Ürper and Others v. Turkey, (Applications nos. 14526/07, 14747/07, 15022/07, 15737/07, 36137/07, 47245/07, 50371/07, 50372/07 and 54637/07), Chamber Judgment of 20.10.2009, paras 39-45.

[38] §6(2) and §7(2) of Law no. 3713, as well as Articles 215 and 218 of the Criminal Code

[39] Article 44 §2 of the Convention

[40] Op. Cit., Jane Boulden and Will Kymlicka

[41] John Locke, Second Treatise of Government, §192

[42] Louis-Léon Christians, Expert workshop on the prohibition of incitement to national, racial or religious hatred, Study for the workshop on Europe (9 and 10 February 2011, Vienna).