Looking beyond the state: transitional justice and the Kurdish issue in Turkey

ABSTRACT

Transitional justice has been promoted as an approach to peace through a strengthening of the democratic rule of law, including a recognition of the rights of victims and the promotion of trust in legal mechanisms, to deal with legacies of violence and repression. A main critique of the transitional justice approach is that it leaves untouched the injustices underlying conflict and the structural causes of abuse. This article looks at ways in which the state in Turkey applied a transitional justice approach to the Kurdish issue, focusing on how it handled the legacy of forced migration and village evacuations from the 1990s. These state remedies to deal with forced migration ignored political dimensions and continued injustices. Against this context, it is argued that the concept of self-administration as it emerged in the course of the struggle of the Kurdish movement may be considered as a form of “do-it-yourself” transitional justice.

KEYWORDS:

• Transitional justice
• rehabilitation
• exclusion
• self-administration
• Turkey
• Kurds

Introduction: placing the state at a distance

It was the 14th of July 2011, and people were walking from various directions to an open field near Batı Kent in Diyarbakir with the music booming from huge loudspeakers, “Diren, ha Diyarbekir, diren! / Direnmektir sana can veren!” (“Resist, Diyarbakir, resist! / Resistance will give you life!”). The gathering of many people, young and old, women and men, was to celebrate the anniversary of the hunger strike begun by Kemal Pir, Hayri Durmuş, Akif Yılmaz and Ali Çiçek exactly 29 years before in protest against the dehumanizing prison conditions and to show the perseverance and stubbornness of the resistance by the Kurdistan Workers Party (Partiya Karkêren Kurdistan, PKK). The choice of the 14th of July for the start of the hunger strike, it is said, was not random, since it was on that day in July 1789, that the people of Paris had stormed the Bastille and brought down “humanity’s jail”, as, “in the millions upon millions of hearts imprisoned in servitude’s dark night, liberty’s first dawning rose at exactly the same moment” (Jaurès 1901). The imprisoned PKK militants had aimed at sparking a light of hope for the oppressed, primarily the Kurds, then in the darkest days of military dictatorship in Turkey. It was also on that day in 2011 that the Democratic Society Congress, an assembly of local councils, from village and neighbourhood level to city and regional level which was established in 2007, announced democratic autonomy, a principle for self-determination and self-administration, as its main political form. Taking the form of the establishment of assemblies – at village or neighbourhood, district, city and regional levels – this self-administration was to provide both a way to define and deal with problems people faced and also a mechanism to build trust within and among communities and develop social cohesion (Jongerden and Akkaya 2013; Knapp and Jongerden 2016). It is in this context that I will discuss the idea of self-administration as a quest by the Kurdish movement to deal with legacies of violence and degradation and relate this to debates on transitional justice, in particular those concerned wıth the problem of state-centred and liberal approaches and the need for local participation and agency to craft a sustainable peace in a violently divided society (Lundy and McGovern 2008).

This article will first look at ways in which the state in Turkey applied a transitional justice approach to the Kurdish issue, focusing in particular on how it handled the legacy of forced migration and village evacuations from the 1990s. I will argue that transitional justice as it appeared in Turkey is problematic for two reasons. First, it evaded the political dimension of the legacies of violence and degradation by framing forced displacement as a developmental problem and ignoring the structural causes of the conflict. An important consideration in this respect is the political architecture in which Kurds have been exposed to forced assimilation and concerted efforts to destroy their cultural identity over many decades. Since its establishment in 1923, the republican regime enacted a Turkish nationalist agenda according to which cultural difference became perceived as a national threat; Kurds were denied their existence, “to the point [ … ] that even the Kurds themselves began to doubt their existence” (Kisanak 2015, 206).

Second, and relatedly, Turkey’s transitional justice dealt with compensation of damage as an individualized transaction. State accountability was pushed to the background by a compensation mechanism that exchanged financial payment for a renunciation of the right to litigation. Moreover, so-called compensation recovery cases turned victims of the state into debtors to the state. Consequently, legal arrangements for the compensation and reparation of injustices became a form of injustice themselves. A consequence of Turkey’s apparent attempts to do justice was thus that abuses continued; indeed, the rule of law did not recognize the rights of victims and nor did it promote civic trust, but sought instead the subjugation of Kurds. Finally, I argue for the importance of collective action as a means to challenge the conditions under which injustice is (re)produced and relate this to the quest for self-administration as a “do-it-yourself” form of transitional justice, a way of dealing with injustices through “self-designation and self-gathering” (Butler 2015, 170).

The case relates to debates about a reduction of rights and justice to “a reform rhetoric which ignores the root causes of human rights violations” and how this may operate “as an effective smoke screen precluding fundamental political problems from being analysed and resolved” (Cizre 2001, 59). In particular, transitional justice approaches are said to suffer from a democratic deficit insofar as they operate top-down and, deliberately or otherwise, make voices from below unheard (Lundy and McGovern 2008, 266). Hence, it was that a public acting in concert, through the idea of self-administration, came to emerge as a way “of calling into question the inchoate and powerful dimensions of reigning notions of the political” (Butler 2015, 9) and placed the (local) agency of non-state actors at the centre of transitional justice (Lundy and McGovern 2008, 266).

To begin with, I briefly explain some of the background to the conditions that resulted in the systematic denial and degradation of Kurds and the emergence of a violent conflict and argue that the violence between the state and the PKK is not the cause of “conflict” but the expression of a situation in which modern Turkey became defined on the basis of an exclusion of Kurds as a national category and rendered them disposable. The post-1999 reforms and the emergence of return and reparation schemes functioned, in practice, as new means of subjugation, in which the state aimed to create new forms of dependency. In the final section, I turn to self-administration as a mechanism for the Kurds to re-establish and re-constitute the self socially and look at how this can be considered as a form of social justice.

Background to the conflict between Turkey and the PKK

Located in the northern Middle East, Kurdistan comprises south-eastern Turkey, western Iran, northern Iraq and parts of northern Syria. After Arabs, Persians and Turks, the Kurds are the fourth largest ethnicity in western Asia, counting a population of thirty to forty million people, the largest part of which lives in Turkey, where an estimated ten to twenty million Kurds makes up between fifteen and twenty-five per cent of the total population. The seven million Kurds in Iraq constitute approximately twenty-five per cent of the population there, while the eight million Kurds in Iran and the over two million Kurds in Syria accounting for around ten per cent of the total populations of those countries. In comparison to the neighbouring Turks, Iranian and Arabs, a sense of national belonging emerged late among the Kurds (in the course of the twentieth century) and was relatively weak (politically and military). This made the Kurds a weak actor in the post-WWI/Ottoman power play that resulted in the redrawing of the Middle Eastern political map, leaving the Kurds divided by the new borders marking out Turkey, Iran, Iraq and Syria (Jongerden and Akkaya 2016).¹ In Turkey, the emergence of Kurdish nationalism was a product of the republic’s establishment as a nation state. On the one hand, this nation state was composed of a state, which feels, as the novelist Elif Şafak² argued, as if it needed protection against its citizens and thus constantly considered its citizens as a threat; on the other hand, it was composed of the idea of the nation, a political ideology holding that these citizens have to comply to a particular cultural identity. Together, this authoritarianism and nationalism formed a despotic compound.

Turkish nationalists, employing a metaphor from the sociologist Zygmunt Bauman, considered themselves as the gardeners of the nation, with the gardener’s job being to define parts of the social habitat as part of the garden and others as weeds: “Like all other weeds, they [the others] must be segregated, contained, prevented from spreading, removed and kept outside the society boundaries; if all these means prove insufficient, they must be killed”, since they are a threat to the nation state (Bauman 1989, 92). One of the great ideologues of Turkish nationalism, Ziya Gökalp, formulated the gardener’s job as follows in one of his most famous poems (Jongerden 2012, 80):

The people is like a garden,

We are supposed to be its gardeners!

First the bad shoots are to be cut

And then the scion is to be grafted.

The cutting of the bad shoots was enacted in several ways. The exchange of populations, seventeen of which took place in the period 1912–24, resulted in the permanent expulsion of those considered not to be part of the new nation states – Turkey, Greece and the Balkan countries – then being established. One of these exchanges, the Greco-Turkish exchange from 1922 to 1924, involved the exchange of about 1,250,000 “Greeks” in Turkey for about 400,000 “Turks” in Greece (Lados 1932; Ari 1995). The destruction of the Armenian population, too, can be understoodd in the context of the gardening process from a multi-ethnic and multi-religious empire to the “ideal” of a homogeneous nation (Ungor 2012). The crafting of the scion consisted of a range of means to “civilize” the “not-yet”: those who could, but were not yet considered part of the Turkish culture. And the Kurds in Turkey were exposed to forced assimilation and concerted efforts to destroy their cultural identity over many decades (Bruinessen 1994). The problem expresses what is referred to as the “constitutive outside” (Laclau and Mouffe 2001,127–134) or “constitutive exclusion” (Butler 2015, 4), referring to those who are considered to be outside the category of “the people” and therefore possibly subject to expulsion, assimilation and murder. Consequently, those who constitute the “outside” become “differentially exposed to injury, violence and death” (Butler 2015, 33).

It was in the context of harsh repression and cultural genocide denying the space for legal political expression that the PKK emerged, between the two military coups of 1971 and 1980 (Imset 1992; Marcus 2007; Gunes 2012; Jongerden and Akkaya 2012; Gunes and Zeydanlioglu 2013). At the time, the PKK envisaged self-determination as the right of people to decide their own destiny, conceptualized in terms of the right to separate (secede) and of independent state formation. In the 2000s, and following a (self-)critique of the character of national liberation struggles and “real existing socialism”, the PKK began to question the conceptualization of independence as state/nation-state construction. This result was a redefinition of its political strategy, so that now, the PKK ties self-determination not to the establishment of a state but rather to the development of people’s capacities to govern themselves (Akkaya and Jongerden 2013; Saeed 2017).

In 1984, the PKK initiated a national liberation struggle. Its strategy involved the progressive development of spatial control and counter-institutions, building up forces where the state was weakest, in the peripheral countryside, but also developing urban networks. The Turkish Armed Forces (TAF) initially focused on the defence of larger villages and towns and thus allowed the PKK to establish an extended guerrilla network throughout the Southeast, thus unintentionally contributing to the fulfilment of PKK strategy. In the mid-1990s, the TAF counter-insurgency strategy was radically changed, aiming at a contraction of the rural space afforded to the PKK and a severing of ties between the rural population and the guerrilla (Jongerden 2007, 2010; Aydin and Emrence 2015; Budak 2015).

The spatial contraction was affected through a re-ordering of rural space: a matrix of control was created through permanent and mobile checkpoints and the deployment of mobile units (alongside the existing defensive and static gendarme garrisons and also paramilitary village guards, established to fight against the PKK). Enabling the supervision and regulation of movements of people and goods, this counter-insurgency re-ordering the rural space included an emptying of the countryside; a constitutive part of the new strategy was the evacuation of large areas and the forced displacement of its inhabitants, at gun-point, which came together with the destruction of villages, burning of farmers’ fields and killing of livestock. Official figures confirm that over 3,000 rural settlements were thus evacuated, mostly between 1991 and 1995, with the numbers of people displaced put at 1–3 million people (Jongerden 2007, 2010). Military, paramilitary and other counter-insurgency forces – like the Gendarmerie Intelligence and Counter-Terrorism Unit (in practice functioning as a death squad and responsible for numerous “forced disappearances”) – were protected by a formally declared state of emergency that provided a shield of immunity to members of security forces and assurances that their actions would not be scrutinized (Budak 2015, 228).

Following unilateral ceasefires in 1993 and 1995, the PKK declared another on 1 September 1998. A few weeks later, on 9 October 1998, their leader, Abdullah Ocalan, was forced to leave his base, in Syria. After travelling to Greece, Italy and Russia, Ocalan travelled to Kenya with the intention of going to South Africa. There, however, he was intercepted, abducted and brought to Turkey. In the period following Ocalan’s imprisonment, the PKK not only extended its ceasefire, but also, in 1999, started to withdraw its fighters from Turkey. For its turn, the Turkish government gradually lifted the state of emergency, until it was finally ended in the two remaining provinces, Diyarbakir and Şırnak, in November 2002 (Budak 2015, 230). In the years that followed, indirect and direct talks between the state and the PKK took place, notwithstanding the occasional flaring up of hostilities. In 2015, however, the Turkish government declared an end to the peace process and bombed PKK camps in Iraqi Kurdistan, leading to blanket curfews and full-fledged urban warfare in the southeast of Turkey where the younger activists in particular, many the children of the rural people displaced in the 1990s, had placed defensive barricades across the streets and claimed autonomy from the state.

Reform, return and reparation

Earlier, a gradual lifting and termination of the state of emergency had developed through a period of legal reforms that started in 1999. A tripartite periodization can be made of Turkey’s reform agenda, distinguishing the “golden years” (1999–2006), a “slowing down” (2007–13) and a “backsliding” (2013–) (Müftüler-Baç 2016). Turkey’s agenda for reform cannot really be said ever to have stemmed from a political will to come to terms with its “Kurdish issue”, however. On the one hand, the reform agenda was related to the Turkish candidacy for EU membership (in 1999) and the opening of accession negotiations (in 2005), while, on the other hand, it was related to the struggle for power between the Islamist and neoliberal Justice and Development Party (Adelet ve Kalkınma Partisi, AKP), elected to power in 2002, and the secular and statist Kemalist elite. Although the AKP government was regarded internationally as a force for democratization in Turkey, its initial struggle with the nationalist elite should not be confused with a liberal pluralism, since it was rather motivated by a struggle for power (Bahcheli and Noel 2011, 104; Cinar 2011, 22). Importantly, the reform agenda generally was essentially apolitical in its formulation: “the AKP framed its policies in a technocratic way: defending them with reference to the European Union, and not based on a deepening of the awareness that the political system in Turkey truly needed radical reforms” (Cinar 2011, 121).

The abolition of the state of emergency (in 2002) and of the death penalty³ (2004), but also the granting of limited rights of mother-tongue education and broadcasting (2002), were initially welcomed as fragile first steps towards a possible paradigm shift of the state in respect of the Kurdish issue, one in which the security (military) approach could finally be replaced by a political approach. However, statements by AKP leaders were contradictory, swinging back and forth between mild-toned and reconciliatory to hard-line and bombastic, and a long-awaited “democratization package”, announced in September 2013, came as a disappointment. In addition to freedoms like the lifting of a ban on headscarves in public institutions, the package did allow for Kurdish language education at private schools, enabled villages to return to their Kurdish names, backtracking on the old Republican Turkification programme and lifted the ban on non-Turkish alphabet letters Q, W and X, which are used in Kurdish but not Turkish; however, it made no direct reference to the Kurds or the Kurdish issue, did not indicate more extensive language reforms to come for mother-tongue (Kurdish language) education, failed to touch on the matter of changes to the Turkish Penal Code, in particular the anti-terror laws, under which thousands of Kurdish activists had been imprisoned, and did not lower the ten per cent electoral threshold. Fundamentally, the so-called democratization package was perceived as comprising just a few offerings, and without any suggestion of a future strategy for change to promote a genuine conflict resolution. In fact, the actual reforms passed by the AKP aimed primarily at extending its span of control. This had become quite clear with measures such as the judicial reform of 2014, which increased the control of the Minister of Justice over the judiciary, the exact opposite of a long-awaited move towards a more independent and impartial judiciary (Müftüler-Baç 2016, 19), and other reforms that eroded freedom of expression and the freedom of assembly.⁴

In the context of reconciliation, the drafting of a new constitution was considered an urgent task. For a settlement of the Kurdish issue in Turkey, three major changes in the constitution, a product of the 1989 military coup, were thought to be necessary:

first, recognition and safeguarding of education in Kurdish as a mother tongue; second, amendment of the definition of citizenship based on the “Turkish” ethnic identity and its replacement with a constitutional citizenship that stands at an equal distance to all ethnic identities; and third, the empowerment of local administration. (Larrabee and Tol 2011, 150)

The drafting of a new constitution was a way to deal with the creation of Kurds as a constitutive “outside” or “exclusion” (Laclau and Mouffe 2001, 127–134; Butler 2015, 4) therefore, through the abolition of the equation of citizenship with ethnicity and introduction of a notion of the civil and through affording people a stronger say in their own affairs, by empowering local government. The new constitution failed to address these concerns (Larrabee and Tol 2011, 150) Kurdish voices were silenced (Gunter 2013), eventually resulting in a Kurdish boycott of the constitutional referendum in September 2010.

A consequence of this failure to address Kurdish concerns was recognized as a major concern, and it was thought that “Turkey could face increasing domestic instability and violence” (Larrabee and Tol 2011, 143), a prediction that was to come true. In 2015 and 2016, blanket curfews were imposed on major Kurdish cities, enforced by tens of thousands of security personnel from different agencies (regular army, special police, state intelligence, etc.) and accompanied by the deployment of shadowy special forces, such as the “Lions of Allah Teams” (Eseddulah Timleri), along with heavy shelling destroying residential areas, sniper fire preventing people from getting to hospital or burying their dead, and a litany of other such rights’ infringements, extending the use of rape as a weapon of terror and massacre by burning alive. Simultaneously, political opposition was suppressed and legal organizations engaged in a struggle for the “right to have rights” (Kesby 2012) were hampered, restricted and closed down, their members investigated, detained, imprisoned and even killed; MPs have been stripped of their immunity and the parliamentary party leaders arrested, municipality offices raided and their elected officials replaced by AKP trustees. The attempt to create a political space has been blocked, and on the journey to peace, the government took a violent exit.

At that time, back in 2002, one of the most pressing social problems in Turkey had been that of forced displacement and return, a transitional justice test-case for how to deal with the legacies of past violence. The issue of return had entered the political agenda in 1995, shortly after the peak in village evacuation and forced displacement. Implicitly at least, it was recognized that the depopulation of the countryside was an anomaly and return inescapable, though return was made conditional on the ability of the army to provide security. In 2001, under the responsibility of the Office of the Prime Minister, a master plan for return was drafted. The plan acknowledged that the evacuation and displacement had inflicted great pains and sorrows, yet gave no word on responsibility, and, moreover, evaluated the situation as an opportunity for the state to create a more “rational” and “vital” settlement structure. Dispersed and unproductive settlement units were to be changed into settlements units of sufficient size and potential. Therefore, it was argued that the issue was not merely one of “return” but also the creation of conditions in which the “forced migrants” could become more productive, both for themselves and for “their country”.

The plan employed a narrative in which the rural (one might add “ethnic”) cleansing was transformed from an act of involuntary exclusion – both geographic and socio-economic – into a context that provided opportunities for the state creation of something new. The aim of the plan was neither the restoration of property nor reparation of possessions for those whose houses and assets had been destroyed, but rather the more exalted, supra-individual objective of “rehabilitation” of “the region” (Jongerden 2007, 109). In the context of this plan, the rehabilitation did not refer to that of the displaced, but to the treatment of perceived disabilities in settlement structure, those that hampered effective administrative control and the imposition of state power. Although the government failed to facilitate a return, displaced villagers have, nevertheless, been re-migrating by their own means since 1999, and in spite of various obstacles (e.g. lack of state provision of otherwise state-provided amenities, such as water, electricity and primary-school transport services). This return was a multifaceted process leading to a new settlement structure (Jongerden 2007, 220, 280); importantly, however, it has showed how, even in the face of tremendous difficulties, people are able to self-organize their own lives.

Meanwhile, in the absence of domestic remedies for compensation for the hundreds of thousands of families and millions, even, of people who had lost their property and livelihoods, the lawyers for displaced villagers took cases to the European Court of Human Rights (ECtHR). In a landmark ruling on 29 June 2004, the ECtHR identified a structural problem with how the Turkish state had dealt with the forced displacement and called upon the government to develop a sustainable solution for those who had suffered material and non-material damage. Essentially, the court concluded that policies to facilitate return had failed and, as Kurban and Gulalp (2013, 168) noted, stressed that “effective legal remedy” required “not only the payment of compensation for the pecuniary and non-pecuniary damages of victims, but also the identification and punishment of perpetrators who committed human rights violations”.⁵

Turkey was thus faced with judgements of responsibility regarding its prosecution of the war with the PKK and treatment of its own Kurdish population in addition to the payment of levels of compensation set in Strasburg (along with ongoing legal fees); with some 1,500 cases already pending, a domestic legal remedy could effectively cut off the road to the ECtHR and head off the worst of the rulings, from both a political and economic perspective (Kurban 2012, 14; Budak 2015, 233). As a result, the ECtHR ruling prompted speedy passage of the “Law on Compensation for Losses Resulting from Terrorism and the Fight against Terrorism” in Ankara, which was accepted by parliament on 17 July 2004 and came into effect on 27 July. Under this law, individuals who had suffered damage and loss as a result of “terrorist activities” or “activities as a result of the fight against terrorism” were entitled to compensation (Budak 2015, 232). The law was supposedly intended to contribute to reinforcing trust in the state, creating cohesion between citizens and the state, and contributing to social peace – but the preamble to the law also referred to supporting the struggle against terrorism and the successes obtained by the security forces and Turkey’s EU candidacy and agreements made in the context of the accession process, as well as the simple need to reduce the number of cases brought to the ECtHR. Thus, the 2014 Law on Compensation was clearly not designed to come to terms with forced migration and the Kurdish issue, but rather to block the road to justice at the ECtHR for the victims. In response to the new law, the ECtHR rejected pending cases and “reduced the notion of ‘effective remedy’ to compensation, overlooking the victims” demands for truth and justice and enabling Turkey to continue to commit “gross violations with impunity” (Kurban 2016, 731).

Crucially, although the domestic compensation law allowed for the state to compensate citizens for damage and loss suffered, this did not imply a political recognition of responsibility (Kurban 2012). In fact, the law enabled the state to redefine the results of its policy of forced displacement in terms of responsibilities to individuals with whom it entered into an economic agreement; it separated the question of compensation for damage and loss from that of political and social responsibility, producing, in effect, victims without perpetrators. This was not in accordance with the ECtHR ruling, but calibrated rather to the EU reform agenda. The EU reform agenda had a bias towards the future and did not involve accountability for past crimes, such as requiring the identification and prosecution of those responsible for human rights’ violations (Budak 2015, 230).

From a quantitative perspective, the instalment of a domestic mechanism to deal with forced migration looks impressive. According to the information of the Ministry of Internal Affairs, a total of 366,782 claims had been filed up until 9 June 2015, with 342,954 concluded, 183,139 being accepted by the commissions and 159,635 rejected. A total of almost 3.4 billion Turkish Lira (TL) had been paid as compensation, at an average of 18,558 TL per claim (about 6,200 Euros).⁶ But there is also criticism, with doubts about the fairness of damage assessments and concerns about exclusionary rules. Human Rights Watch (2006) has stated that the government failed to provide fair compensation to the mainly Kurdish villagers displaced in the military’s counter-insurgency campaign. It also reported several injustices in the practices of the damage assessment commissions. These have included the manipulation of house prices to reduce property values by calculating house values on the basis of values for cowsheds – the commissions arbitrarily reduced valuations by placing a ceiling on the maximum compensation for damage to houses, outhouses and barns; and the value of land holdings was underestimated, stock being excluded and compensation or assistance already received exaggerated (Human Rights Watch 2006, 20–29). Further to these, the lack of transparency, the nature of the evidence required and the high number of rejections (forty-three per cent of concluded cases) were also considered problematic (Kurban 2012; Budak 2015, 234). In its Roadmap for a Solution to the Kurdish Question, the Turkish NGO TESEV (Turkish Economic and Social Studies Foundation) called upon the establishment of an administrative appeal mechanism “to inspect the decisions of the damage assessment commissions, especially the refusals” (TESEV 2008, 10). Moreover, “Adding insult to injury, in some areas villagers themselves [were] obliged to finance the operation of the provincial damage assessment commissions”, expenses that were “substantial” (Human Rights Watch 2006, 20).

In addition to a lack of fairness, six rules that were applied resulted in the exclusion of compensation. The first one was the single person rule, which disqualified persons who ran a single household at the time of displacement. This also implied that people who had married using a customary religious marriage arrangement and did not have a civil marriage were excluded from compensation. The second was that people with children born outside the village after 1987 were considered to be economic migrants and not victims of forced displacement and therefore did not receive compensation. The third exclusionary rule was that all those displaced prior to 19 July 1987 were treated as economic migrants. Fourth was the “closure of conflict rule”, implying that losses resulting from inaccessibility of the village and land after 1999 were excluded from compensation (Human Rights Watch 2006, 29–32). Fifth was that non-pecuniary damage was excluded from compensation, and the sixth rule excluded from compensation all those convicted under the anti-terror law (Budak 2015, 233).

Repair and compensation as subjugation

The issue of repair and compensation has been more than one of shortcomings, failings or imperfections. In Haunted by Debt, Zerrin Özlem Biner argues that the state has used “legal devices to transform reparative justice mechanisms into debt-producing mechanisms that create new compulsory bonds between the state and Kurdish citizens” (2016, 1). Legally, the damage commissions proposed “friendly settlements”, with those entering into them accepting “the legal closure of their files with respect to the injuries that they suffered under the emergency rule between 1987 and 2004”, the period covered by the compensation law, and thereby renouncing all rights to any further litigation (Biner 2016). The settlement has functioned as an exchange of money for the right of the displaced to initiate any legal procedures related to their case that may have led to a trial. Given that these were mostly impoverished people placed in a precarious situation as a result of the displacement and appropriation of rights, this may be considered as abusive.

In Turkey’s dealing with the past, there have been not only the “friendly settlements” but also “compensation recovery cases”, including those cases in which compensation was paid to members of security forces for injuries and losses. The costs for these compensations are recovered from third parties, who are held accountable for the loss and injury. Once identity is established, the third party is required to reimburse the state with the amount of the compensation paid to the security officer (with interest and court expenses). If the third party is deceased, the state claims the amount from his/her family, who is held responsible for the debt on the basis of Inheritance Law. Biner (2016, 4) claims that while the compensation law’s friendly settlement erases the accountability of the state by exchanging money for a renunciation of the right to litigation, “the compensation recovery cases create an unmovable and permanent relation between the state and families of the dead militant as the inheritors of punishment in the form of debt”. In the context of the compensation law and friendly settlement, no local government officials or members of the security forces “were imprisoned for violent acts that caused the destruction of the environment and lives of Kurdish citizens” (Biner 2016, 4). The families of local government officials and security forces were not hold “responsible for the compensation paid to the Kurdish citizens who applied for and received compensation in exchange of the loss that they incurred during the conflict”; yet Kurdish citizens were held responsible for the acts of relatives and held liable for the recovery of compensation paid.

As the rule of inheritance became the key component of this forced contract, its renunciation became the only clear path to escape the obligation of this bond. In other words, the erasure of the legal debt was conditioned on the parent’s renunciation of their bond with their child. The debtor-creditor relationship would be voided through the legal dissolution of the parent-child relationship. The state was offering another opportunity for closure by forcing the families to disown their children, which would in turn mean disowning their connections to themselves. (Biner 2016, 5)

The “compensation recovery cases” thus became the application of symbolic violence, in which victims either entered into a debtor relation with the state or had to renounce the bonds with their children.

Transitional justice beyond the state

With the process of rehabilitation, and repair and compensation, we have seen how (i) the issue of forced migration was disentangled from the Kurdish issue and re-established as a technical problem of (rural) development (Ayata and Yükseker 2005; Jongerden 2007), and how (ii) injustices and violations inflicted on a group were transformed into individualized cases of compensation under the disguise of a “friendly settlement” to preclude litigation and subjugate through the mechanism of debt (Biner 2016). Simultaneously, repressive measures were and continue to be employed in response to the expression of Kurdish identity and the quest for proper civil rights and citizenship motivated by what was and still is regarded as an existential threat to the Republic, and it was in this context that various incidents created the occasion for the state to denounce the Kurdish movement as a whole and discontinue so-called peace process purportedly aimed at resolving the issue.

This seems to be the reverse of a transitional justice approach, referring to the application of the rule of law in transition processes from authoritarian to democratic regimes, and which, in recent years, has emerged as a widely favoured way of addressing legacies of violence and violations in the context of armed conflicts. Yet even the more usual transitional justice approach, it is argued, inherently suffers from a democratic deficit. What is at stake is the issue of agency, or who initiates and controls change (Lundy and McGovern 2008, 273, 275). In this context, the importance of an emancipatory approach, of social struggles that challenge the conditions under which repression is reproduced and collective action to overcome this, places agency at the centre of transitional justice. This constitutes transitional justice less in legal terms than in social practices and “the ability of local people to define local obstacles or problems, conceptualise, initiate, design and implement programs to address these problems” (Lundy and McGovern 2008, 281). There is a need to think outside the legalistic and state-oriented box, and, rather than privileging state agencies, international institutions, law and legal expertise, focus on popular programmes through which collective action and the raising of consciousness, especially a moral consciousness – “consciencisation” – becomes the means through which people confront the condition of oppression and abuse (Lundy and McGovern 2008, 280, 292). This is why concerns such as return and compensation in relation to the Kurdish issue in Turkey should be dealt with as a socio-political issue.

At the heart of the political issue is the demarcation between those who are considered the people and those who are considered a dangerous and disposable population (Butler 2015, 4); ultimately, this results in a questioning of the very foundation of the state itself. The inquiry into the constitutive exclusion is an act of saying and an act of doing that both exposes the exclusion but also challenges it. Following Butler (2015, 11), we may say that the possibility of establishing people as people, as citizens, is dependent on (i) the capacity to speak and to be heard and (ii) the capacity to appear, to become visible and to be seen by others. So, democratic struggle is not only about the possibility of using language for the formulation of alternatives; it is also about the possibility of assembling for a self-expression in the public domain, and, relatedly, the right to appear and be visible, again, publically (Butler 2015). Indeed, this is fundamentally, since without appearance and voice, how can any communication about alternatives even begin? Thus, Merrifield (2014) refers to the need for places of encounter, for places where people who have been silenced – the “shadow citizenry” – can appear and bring into focus the politically induced conditions of their exclusion.

One of the responses of the Kurdish movement to the intransigence of state power was the development and declaration of self-administration. This was a way in which the Kurdish movement attempted to re-establish itself as a political movement, in which people tried to shape and organize the physical and social infrastructures of their lives. In other words, self-administration was developed as a way to act politically in a situation of structural oppression. In 2011 and 2012, the Kurdish movement started a campaign around a Kurdish language slogan, “I am here” (Ez li vir im). Gülten Kışanak, then co-chair of the party and in 2014 elected as Mayor of Diyarbakir, stated:

When we initiated this campaign we thought of the following. This system, this state, the mentality of the AKP imposes surrender on us, it wishes to strike fear in us through violence and repression. They wish to intimidate and scare everyone. If that is the case then we must show them that we are not scared. If that is the case then we all must say “I am here”, I am right in front before you and I continue to resist. (2015, 212)

The key to these actions as expressions of the principle of self-administration lies, in the words of Butler (2015, 58), “in the acting, laying claim to the power one requires … [to] secure the conditions of existence”. This can be linked to what is referred to as in debates on transitional justice as the ability of people to define obstacles or problems and then to act on these (Lundy and McGovern 2008, 281). Self-administration, or democratic autonomy as it is referred to in the Kurdish movement, is people acting in concert, and calling into question reigning and violent notions of the political (Butler 2015, 9). It placed the (local) agency of non-state actors at the centre of transitional justice (Lundy and McGovern 2008, 266). As such, this relates to the creation of a form of justice beyond the state (Jongerden and Akkaya 2013; Mauer and Staal 2015; Yarkin 2015).

Self-administration had been already practised for several years since the mid-2000s at a developmental level, sometimes under huge duress (Casier, Jongerden, and Walker 2011). By the end of 2015, the dimension of self-defence came to the fore, when youngsters started to dig ditches as barricades in response to threats, security operations and eventually the full-fledged urban war we have seen in several cities in the southeast of Turkey, particularly in Diyarbakir (the Sur district), Cizre (Cudi, Nur and Yafes), Nusaybin and Şırnak but also in other cities, notably, Silopi, Silvan and Yüksekova. The basic level of self-administration is the neighbourhood council, a local participatory (non-representative) government structure. The main activities in which the councils were engaged before the state military interventions in 2015 and 2016 were oriented towards education, social safety and poverty and could be described under the headings of “mediation” and “community development”. Regarding their educational work, the councils organized courses for the youth (in music, theatre, drawing, etc.) and provided information and instruction on, among other things, gender equality and women’s rights. A neighbourhood council in the city of Diyarbakır, where many forced migrants settled, was involved in the establishment of the first school at which Kurdish was the language of instruction (the Ferzad Kemanger Primary School in the Bağlar neighbourhood), and, in doing so, engaged in a form of direct action that went beyond just demanding the right to education in Kurdish from the state to actually realizing it. Such activities are to be regarded as countering the social and cultural deprivation effects of a repressive state regime. One could say that this has nothing to do with transitional justice, and, indeed, it is not directly concerned with “law” even, but all these activities have to be understood in the context of decades of denial and degradation. Indeed, this is how people re-establish themselves as citizens, and collectively deal with legacies of violence and degradation.

Final remarks

Transitional justice is considered a successful way of dealing with legacies of violence and repression through the strengthening of democratic rule of law. Crucially, transitional justice is thought to promote trust in legal mechanisms and a recognition of the rights of victims of violence and abuses. Yet an important critique of this approach is that it leaves untouched injustices underlying conflict and (thus) the structural causes of abuse. This has been discussed here by looking at the ways in which the state in Turkey applied its transitional justice to the Kurdish issue, focusing on how it dealt with the legacy of forced migration and village evacuations from the 1990s, when some 3,000 rural settlements were forcedly evacuated and burned. I have argued that the so-called rehabilitation programme was not concerned with the social re-establishment of the disrupted lives of the displaced villagers but with the treatment of perceived shortcomings in human geography, namely, a dispersed settlement structure that supposedly hampered effective administrative control and the imposition of state power. Moreover, the rehabilitation programme was framed as a development imperative, disentangling the issue of forced migration from the Republic’s Kurdish issue and re-establishing it as a technical problem of (rural) development. In this process, as contextualized by the Law on Compensation, injustices and violations inflicted on Kurds as a group were transformed into individualized cases of compensation, which, under the disguise of a “friendly settlement”, precluded litigation and yet further oppressed through a mechanism of debt. Thus, both rehabilitation and compensation have effectively functioned as instruments of subjugation and control of the victims of violence and abuses, enabling impunity for perpetrators and providing a legalistic smoke screen allowing structural problems to go unanalysed, unspoken in the normative/hegemonic public discourse and thus unrecognized. It was in this context that I discussed the attempt to create assemblies for local self-administration as fundamental to the recovery of a sense of humanity (Harvey 2014, 272). This is “do-it-yourself” transitional justice, a way in which, against a background of denial and degradation, a sense of self and community is being re-established.

Disclosure statement

No potential conflict of interest was reported by the author.

Notes

1. See for a discussion of Kurdish nationalism (Bruinessen 1978; Olson 1989; Jwaideh 2006; Gunes 2012).

2. See the interview with Elif Şafak in Der Spiegel, http://www.spiegel.de/international/world/turkish-author-elif-shafak-on-society-under-erdogan-a-1066223.html.

3. For the Kurdish movement this was a key-issue, since it feared that Turkey would sentence Ocalan to death.

4. See https://freedomhouse.org/report/freedom-press/2015/turkey and https://www.hrw.org/report/2014/09/29/turkeys-human-rights-rollback/recommendations-reform.

5. See the case of Dogan and Others v. Turkey http://www.refworld.org/pdfid/414d86ab4.pdf

6. http://www.illeridaresi.gov.tr/5233-sayili-kanun-uygulanmasi-istatistikleri.