The Assyrian Genocide and Article 312 of the Turkish Penal Code: the case of an Assyrian Priest in Turkey (1)
On 8 November 2000, the French Senate passed a resolution condemning and recognising the Armenian genocide.(2) This gave rise to mass hysteria in the Turkish press. Even Doğu Perinçek’s Aydιnlιk joined in imagining European and American conspiracies to break up Turkey.(3) A former Maoist, and now a staunch Kemalist, Perinçek epitomises the journey of the Turkish left towards nationalism. With some exceptions, there seem to be a convergence between the left and the right in Turkey on such issues as the genocide. Both political spheres use such terms as “sözde soykirim” (“so-called genocide”) to deny the genocide against the Armenians and display a crude nationalism. This makes it very difficult for anyone to raise the issue of the genocide from a divergent perspective, as the combined forces of opposition are very strong.
During September and October 2000, the US Senate was also discussing a resolution on the genocide, which eventually did not pass. It was not clear at the time whether the resolution was going to be adopted.(4) Nevertheless, Turkish newspapers felt obliged to print another volume of articles attacking Armenians and any other ethnic group or institution viewed as suspicious. One such paper, Olay, went to extract a statement from an Assyrian priest, Yusuf Akbulut. The first suspicious factor is why they chose to go to obtain a statement from a priest with a very small congregation in Diyarbakir(5), when they could have spoken to religious leaders in Tur’Abdin or Istanbul.
It may be thought that the journalists went to trap the priest thinking that a metropolitan, such as Timotheos Samuel Aktaş, who has more experience in dealing with the press, may not be easily ambushed. The fact that they have secretly recorded on a video the interview gives more weight to such suspicions (See the full text of the indictment at Appendix A). Nevertheless, it is more likely that they went to extract a kind of statement the Armenian Patriarchate issues from time to time, to appease Turkish authorities. For example, on the occasion of the resolution in the French Senate, the Armenians Patriarch, who, it should be pointed, has no choice, issued one of those regular statements, and avoided incurring the wrath of the Turkish authorities and press.(6)
The priest in question however, father Akbulut, did not perform the assigned role and issued a statement confirming that the genocide took place and Assyrians were massacred, as well as Armenians.(7) Father Akbulut, however, “… was chatting (with journalists) off the record”.(8) Clearly, he did not think he was going to be reported. Nonetheless, he did not deny that he made the statement.(9)
The following day two journalists from the populist tabloid Hürriyet went to confirm Father Akbulut's statement. Next day the vilification campaign started in earnest against the priest. Hürriyet called him a ‘traitor’ (hain).(10) This is a charge worth analysing. It is certain that what Hürriyet means is ‘a traitor to the Turkish nation’. However, Father Akbulut is not a Turk, although a Turkish citizen. He is a Syriac Orthodox, a Syriani; member of a dwindling minority. One could argue that were he to deny that the genocide took place, he would have been a traitor to his own nation. Under the circumstances, however, nobody would have blamed him, had he simply issued a denial of the genocide for fear of his own and his family’s safety.
The underlying message in the Turkish press is that everyone who lives in Turkey owes gratitude to the Turkish government, state and the nation. If they do not show this gratitude in some way, they would be considered as traitors.
Elsewhere I have discussed the policies of the Turkish Republic on ethnic minorities, and the Assyrians in particular(11), and it is not necessary to repeat them here. The precarious state of the Syriac Assyrian people in Turkey is even occasionally accepted by the Turkish press – that is when they are not running campaigns against them.(12) Nevertheless, it is important to refer to a number of documents that would place the current situation of the Syrianis in the relevant context.
A Syriac Church petition to the Turkish government of 1995 with clarity and great care puts the insecure position of the Syriani community to the Turkish government. (13) The letter is signed by Timotheos Samuel Aktaş, Archbishop of Tur’Abdin, and Filuksinos Yusuf Çetin, Archbishop of Istanbul and Ankara.
The letter was addressed to the Office of the Presidency. An administrative order was to be given to the local governor (Vali) to respond to the petition, yet it was not followed up.(14)It is perhaps to this state, which does not even bother responding to a letter written by an ethnic community leader, that Yusuf Akbulut is supposed to show gratitude.
This petition refers to Articles 37 to 45 of the Lausanne Treaty (1923) on the protection of minorities in Turkey. A cursory examination of the said articles will reveal that the conditions to which the Turkish government agreed were mostly honoured in their breach rather than their implementation. For example, Article 41 purports to grant the right to non-Muslims to use their language as a medium of communication in primary schools. Yet, Syriani Assyrians are not able to exercise that right.
In Article 38, the Turkish government undertakes to assure full and complete protection of life and liberty to all inhabitants of Turkey without distinction of birth, nationality, race or religion. Yet, between 1990 and 1994, 27 Assyrians were killed systematically in Tur’Abdin area, most probably by fundamentalist Muslims, without attracting the attention of the Turkish authorities.
Partially, Article 40 grants religious freedom, yet as Archbishop Aktaş indicates in his petition, holy books in Syriac (Aramaic, Chaldean) imported to Turkey are being seized by the authorities.
The Turkish authorities prefer not to view the Syriani community as a minority. The objective of this policy is to deny any special rights to the Syriani Assyrian community.(15) A further evidence of this is the communiqué sent by the Legal Adviser of the Ministry of Education who somewhat nonsensically state “… the Syrianis are not a minority in Turkey. And if they were a minority, since they would study in their own schools, they would not have the problem they claim to have”.
Here it should be mentioned that no article of the Lausanne Treaty specifies any ethnic minority. The term “non-Muslims” is used throughout. However, in the discussions the term non-Muslim has been limited to three ethnic groups only: Greeks, Armenians and Jewish. There is no legal basis for this selection. It is true that in the Fifteenth Century the Ottoman millet system recognised three minorities Greeks, Armenians and Jews. On the other hand, at the dying stages of the Empire other millets (minorities) were included in the censuses. They were already recognised as separate millets by the Sublime Port (the Ottoman Government). Carleton notes fifteen millets in 1912, including Syrian Orthodox and Syrian Catholic. (16)
The Lausanne Treaty, which was signed by all concerned in good faith, has been used against the Syriani community and provided no protection for them. The Rule of Law is supposed to afford them that protection, and yet various laws and regulations have been used to intimidate further a small minority. Yusuf Akbulut’s predicament is a case in point. In most countries where religious freedom and the right to free speech is observed, Father Akbulut’s comments would at most raise an eyebrow. Yet, the full extent of the power of the law descended upon him, on the grounds of an article written by two ‘patriotic journalists’ from the tabloid press.
Father Akbulut was thoroughly vilified in Hürriyet and other press. Hürriyet, which was obviously not satisfied with the label ‘traitor’, also published an article by vilifying all priests, merely by the title of its article: Süryani Papaz ‘papaz’ oldu. This is somewhat difficult to translate, but roughly, it can be rendered as “the Syriani priest became a ‘priest’”. The second term ‘priest’ is used as an insulting phrase. That is, a ‘priest’ demonstrates some negative qualities, which are nevertheless not defined. This is the message of this title. It is encoded, and any reader trained by tabloid press would receive the message as such. Perhaps father Akbulut should have shown gratitude in a country where newspapers uses the designation of his profession as an insult.
The use of such language in the Turkish press referring to Greeks, Armenians, Assyrians or Kurdish is not unusual. For example, at the same time, another Turkish paper, Star in their reference to the recognition of genocide in Europe, set the following sub-heading: “Ermeniler azdi”. (17) “Armenians got out of hand” is one possible translation, but it has even more negative nuance in Turkish. Once again, the message is that the minorities should live within the narrow confines of the paradigm set by the policies of the Turkish state. If they do not, repercussions will follow.
Even the Germans were not spared the ire of the Turkish press. A Turkish tabloid Takvim labelled he German parliamentarians slanderers” and demanded to “make the slanderers shut up!”(18), though suggested no cause of action to achieve such an objective.
The statements of Yusuf Akbulut, as reported in the press, have not gone unnoticed by the Public Prosecutors’ office and the security forces. Yusuf Akbulut was arrested, then released but then charged under the notorious Article 312 of the Turkish Penal Code (Türk Ceza Kanunu, TCK).(19) This article warrants some attention because the circumstances in which Father Akbulut found himself cannot be understood without reference to the rationale behind such law.
The Article 312 of the TCK basically restricts the freedom of thought and contravenes Articles 9 and 10 of the European Convention on Human Rights, which Turkey is signatory, and reads as:
Whoever openly praises or speaks favourably of an action which, by law, is a felony, or who incites people to disobey laws, shall be punished by between six months’ and two years’ imprisonment and shall be subject to a heavy fine of between 6,000 and 30,000 Turkish liras.
Whoever incites people on the grounds of class, race, religion, denomination or regional differences to provoke vengeance and enmity, shall be punished by between one year and three years’ imprisonment and shall be subject to a heavy fine of between 6,000 and 30,000 Turkish liras.(20)
In its application, ‘ethnic propaganda’ is considered to provoke such enmity and is therefore punished. However, any expression of ethnic, religious, national, confessional identity may be considered such propaganda.
Many journalists, intellectuals, publishers and politicians have been charged under this act. Although the article has mainly been used against the Kurds, Turkish journalists and Islamists have also been charged under this act; for example, former leader of the Islamist party Refah Partisi (Welfare Party) Necmettin Erbakan, and former Mayor of Istanbul Recep Tayyin Erdoğan. Consequently, the Islamists are in favour of abolishing it.(21) The most noteworthy cases, not involving fundamentalists, have been those of Şanar Yurdatapan, Yaşar Kemal and Turkey’s Human Rights Association President Akin Birdal. For the purposes of this paper, the charges brought against the Islamists do not concern us because the cases are quite different. However, some cases warrant our attention, which may be relevant to the case of Father Yusuf Akbulut.
Şanar Yurdatapan was charged under Article 312, for distributing an abriged version of his book Freedom of Expression. In this instance, the court showed a reluctance, which by no means is isolated, to impose a prison sentence, and preferred to enforce a fine of 650,000 TL (US$6.50 at the time).
Yaşar Kemal, a novelist of some international standing was also charged under this article. Kemal is of Kurdish background. In 1995, the Istanbul Devlet Güvenlik Mahkemesi (State Security Court, DGM) charged him in connection to his article “Black Sky over Turkey”, which he published in a German news magazine, and later reprinted in Turkey in a book entitled Freedom of Expression. In his publication, Kemal accused the Turkish government of waging a “campaign of lies” in its comprehensive censorship of reporting on the Kurdish question. Kemal was charged under both the draconian Article 8 of the Anti-Terror Law and Article 312 of the TCK for “inciting racial or ethnic enmity”. The court acquitted him in December 1995, finding that he had no intention to promote separatism or racial enmity. He was tried and convicted in March 1996, on the same charge but he received a fine and suspended sentence, though he appealed and subsequently lost.(22)
Finally, in a case that is directly relevant to that of Yusuf Akbulut's in DGM, a Turkish publisher Ayşe Zarakolu was charged under the Article 312 of TCK for publishing a monograph by Professor Vahakn Dadrian on the Armenian Genocide.(23)
A Turkish-born Armenian himself Professor Vahakn Dadrian is an authority on the Armenian Genocide. Belge Yayinlari (Belge Publishing Company) decided to publish the monograph under the title Jenosid (Genocide). As it is the practice in cases involving authors from abroad, publishers are routinely brought before the courts in their stead. The publisher Ayşe Zarakolu was charged under the notorious Article 312. The charge was “incitement of Armenians against the Turks”; a very serious allegation. The High Court of Appeals, Yargitay, (8th Registry), dismissed the case on the grounds that “the number of Armenians in Turkey to be incited is not such that they could constitute a threat”. The acquittal decision states that the “genocide” thesis is not correct, though there is no grounds for punishing someone because they said there was a genocide”. (24)
The Articles 312 is supposedly against incitement of hatred on racial grounds. However, in practice, I argue that its true intent is not that. It is an article aiming to suppress any kind of criticism of the Turkish state, emanating from the ethnic minorities or anyone on behalf of the ethnic minorities. It is to protect the Turkish nation, the majority, from the minority. Whereas in the reverse, the article provides no protection to the minority. For example, Armenians are routinely vilified in the press but no action is taken against journalist inciting hatred. Yusuf Akbulut was vilified in the press but no action was taken against journalists. In fact, the three journalists were state witnesses against Yusuf Akbulut. In most countries, vilification legislations are in place to protect the minorities from the majority.(25) In Turkey, it seeks to prevent minorities from asking for their democratic rights.
Although a number of convictions under Article 312 have already been found to contravene Article 10 of the European Convention in judgements against Turkey (including Öztürk v. Turkey 22479/93; Ceylan v. Turkey 0002356, 8/07/99; Incal v. Turkey 000222678/93, 9/6/98(26), members of the judiciary and politicians still publicly voice their opposition to reform the penal code. The Chief Prosecutor was reported saying that Article 312 should be retained unchanged as a safeguard against “separatism and religious reactionism”.(27)
State Minister Abdulhaluk Çay said, “Article 312 is the only article which protects the unity of the Turkish Republic. Government should not abolish the article 312 as it is an essential article for the unity of the Turkish Republic”.(28) The leader of the Nationalist Action Party (MHP) and, Deputy Prime Minister Devlet Bahçeli had also expressed the view that the Article 312 cannot be abolished.(29)
The army itself is not in favour of reforming the article. In 1999, the chief of general staff warned that the Article 312 should not be amended.(30)
Yet, there is also opposition, including from the judiciary, if not directly to the article itself, but against the political influence over the judicial process and constraints of freedom of expression. The current president of the Turkish Republic, Ahmet Necdet Sezer, in March 2000, as the then President of the Constitutional Court (Anayasa Mahkemesi), called for harmonization of Turkish Domestic Law with the European Convention. In September 2000, President of the High Court of Appeals Dr Sami Selçuk rated the legitimacy of the constitution as “almost zero”. Consequently, some high-ranking judges are not content with the domestic law as it stands, and perhaps this discontent demonstrates itself in some of the verdicts they pronounce.(31)
Reportedly, some judges examine evidence rigorously and dismiss many
charges brought under these laws. Thus an enthusiastic public prosecutor may
not necessary secure a conviction.
Often lawyers representing clients in these courts may become subjects of harassment themselves. For example, a solicitor from Malatya, Hasan Doğan representing many people in DGMs was himself charged for being member of an illegal organization. The charge was solely based on the testimony of a convicted prisoner who was looking for favourable treatment. Many lawyers who practice before the DGMs contend that cases in which testimony provided by informers is used are difficult to challenge. (32)
Father Yusuf Akbulut found himself in a difficult position. One can imagine the difficulties in being the sole priest in the only church of a small congregation in Diyarbakir. This seems to be the fate of the Christian Minorities in Turkey. A lone priest marking the end of a civilisation that lasted for millennia in that land. The reduced number so of an ethnic community, however, is one sad factor. More sinister is the way the Turkish government tries to undermine even this small group of indigenous Anatolians.
While Armenians have in the past very regularly received negative publication in the Turkish press, the Assyrians were treated more sympathetically by the press, including Hürriyet. However, this sympathy evaporates once some establish official truths are undermined. A member of a minority is supposed to show gratitude for being allowed to live in such a tolerant society. He or she is not supposed to step out of line, as Yusuf Akbulut did. He did not even criticise the current government policies on ethnic minorities. He simply pointed out what he believed to be a fact.
Surprisingly, the judge acquitted Akbulut of the charges. He did not even impose a monetary fine. In the current political climate where Turkey is at the gates of Europe, the judge did not seem to want to impose a sentence at all. It would have only served those who may say, “Turkey is not a democratic society, and here is one more proof”. Furthermore, a priest imprisoned for simply expressing his opinion may not have been looked favourably upon by the European Union, where Turkey is seeking membership. A prison sentence would have certainly looked like an over-reaction by the Turkish State.
As Barbara Baker reported, Akbulut’s lawyer argued that the journalists acted unethically and that he talked to journalists “off the record”. This is crucial, as private comments do not come within the purview of Article 312. The public prosecutor himself asked the court to acquit Akbulut.(33) This was the same prosecutor who initiated the case when he read the article in Hürriyet. In the last hearing, the prosecutor said that Akbulut did not “behave with a special intention to incite people to hatred and enmity” and that “his behaviour be evaluated within the framework of freedom of expression”. The inevitable question emerges, as to why he initiated the case at all?
There are a number of conclusions that can be drawn from the Akbulut case. While the case was in progress a report on the Assyrians was presented to the State Security Council. The compilation of “the Assyrian report” – a report on the activities of the Assyrian Diaspora -(34) was almost certainly precipitated by the publicity the Akbulut case attracted. It may also partly account for the recent circular issued by the Turkish Prime Minister Bülent Ecevit on Assyrians (Appendix B). The Turkish government must have realised that the traditional methods of denialism may not be sufficient to neutralise claims of Assyrian Genocide.
The Assyrian Diaspora demonstrated its skills in mastering support for Akbulut and it is unlikely that the momentum will be arrested until Turkey recognises the Assyrian – indeed the Christian Genocide of 1915. Furthermore, the State Security Council’s report illustrated that various authorities - covert and otherwise, watch the Assyrian activities.
Three journalists showing a complete lack of consideration for any ethical standards secretly recorded Akbulut, furnished the tape as evidence to the court and they appeared as witnesses for the prosecution. They acted as agents of the state rather than independent observers of events, facts or truths. In effect, they fabricated the event in order to report it. The journalist in Hürriyet and other newspapers may continue to freely incite hatred on religious grounds knowing full well the Article 312 apply only to certain journalists, and that the Lausanne Treaty has no validity in Turkey.(35) Admittedly, Hürriyet changed its policy during the course of the case. It dropped the epithet ‘traitor’ and the acquittal was reported without any negative commentary.(36) The parallel between Hürriyet’s changing tact and public prosecutor’s asking for acquittal, hints that both journalist and the judiciary followed orders from above. The case was very damaging for the reputation of Turkey and it had to come to a conclusion.(37)
The final dimension to the case is the reaction of the Kurds, for Yusuf
Akbulut also named them as perpetrators in the 1915 genocide. Although, PKK
(Kurdistan Workers Party) has admitted responsibility of the Kurds in the
genocide, its organ in Europe, Özgür Politika, published a scathing article
that argued what Akbulut said constituted a crime under TPC and criticised
the Court over its decisions. The paper suggests that while Armenians (see
Dadrian case) and Assyrians are able to speak their mind, the Kurds are not
able to speak of the Kurdish reality in Turkey. While it is true that Kurds,
and indeed Turks, have been imprisoned or fined under the Article 312, the
assertion that Assyrians and Armenians receive preferential treatments from
Turkish authorities is disingenuous.(38)