WORKSHOP PAPER SUBMITTED TO THE OFFICE OF THE 1

WORKSHOP PAPER SUBMITTED TO THE OFFICE OF THE

HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)

Submitted by Kurdish Human Rights Project

September 2010

QuickTime™ and a

TIFF (Uncompressed) decompressor are needed to see this picture.

Kurdish Human Rights Project

11 Guilford Street

London WC1N 1DH

1

CONTENTS

A. Introduction

B. Summary of the manifestations of contemporary forms of racism and xenophobia in Turkey

1. Background of the problems encountered by the Kurdish population in

Turkey

2.1 Constitutional framework of discrimination

2.2 Lack of a comprehensive legal framework on anti-discrimination

2.3 Anti-terror Legislation

2.4 Prosecution under the Turkish Penal Code

2.5 Restrictions on political participation by members of minority groups

2.6 Discrimination in judicial procedure and public policy based on cultural differences

2.7 Right of minorities to participate in the activities of trade unions, rights of minorities to broadcast

2.8 South East Turkey remains economically marginalized by discriminatory policies

2.9 Gender equality issues

C. Summary of the manifestations of contemporary forms of racism and xenophobia in Syria

1. Background of the problems encountered by the Kurdish population in

Syria

2. Discrimination of Kurdish Population within the Constitutional

Framework of Syria

2.1 Legal effect of the statelessness of Kurds in Syria

2.2 The use of torture against Kurds in Syria

2.3 Arrests, detainment and prison conditions

2.4 Disappearances and deaths in military service

2.5 Military Court sentencing

D. Summary of the manifestations of contemporary forms of racism and xenophobia in Iran

1.

Background of the problems encountered by the Kurdish population in

Iran

2.

Discrimination of Kurdish Population within the Constitutional

Framework of Iran

2.1

Discriminatory State Structure

2.2

Arrests and detentions of Kurdish Persons in Iran

2.3

Executions of Kurdish Persons in Iran

2

A.

Introduction

This paper is based on the work of the Kurdish Human Rights Project (KHRP) in the

Kurdish regions. It aims to explore issues regarding the ongoing manifestations of racism in the following countries:

 Turkey

 Syria

 Iran

An exploration of the prohibition of incitement to national, racial or religious hatred in the above mentioned countries will take into account the relevant legislative patterns, judicial practices and policies. Legislation, judicial process and jurisprudence will be explored under broader legal issues and problems with implementation of legislation. KHRP’s research in this area has mainly focused on

Turkey and Syria, though the situation regarding the legal protection from discrimination in Iran will also be summarized.

B. Summary of the manifestations of contemporary forms of racism and xenophobia in Turkey

1.


Turkey

Despite the initial progress of improving the standard of the protection of human rights in Turkey, which had been stimulated by the opening of the accession process of Turkey to the European Union, reforms and the reform process have slowed.

1

Turkey’s 15 million-strong Kurdish population continue to face systemic violations of their human rights while unable to properly represent and organise themselves without legal obstruction and prosecution. The many aspects of discrimination on ethnic grounds are consequently underlined by the enforcement of ‘high security zones’ in the southeast.

Turkey’s anti-terror law provides a legal framework that acts as a structural basis for racism, and KHRP has learned that Kurds are at least five times more likely to be tried under anti-terror law for alleged criminal offences than non-Kurds.

2 Although anti-terror legislation is a crux for racial discrimination against Kurds and subsequent violations of their rights; judicial application, discriminatory economic and cultural policies, and authoritative state power reinforce the environment of increasing violence and discrimination being used against Kurds.

2.1

Constitutional framework of discrimination

1 KHRP Submission, Submission to the Office of the United Nations High Commissioner for Human

Rights, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance , (KHRP, London, June 2010), 1



3

Article 2 of the United Nations Committee on the Elimination of Racial

Discrimination (CERD), to which Turkey is a signatory, includes the requirement that State Parties must take effective measures ‘to amend, rescind or nullify any laws and regulations which have the effect of creating or perpetuating racial discrimination wherever it exists’. Article 5 requires that Turkey ‘guarantee the right of everyone, without distinction as to race, colour, or national or ethnic origin, to equality before the law’. Despite these requirements of the international treaty,

Turkey asserts in its third periodic report that ‘in line with State philosophy based on equality of citizens assuring non-discrimination, Turkish citizens belonging to non-

Muslim minorities enjoy and exercise the same rights and freedoms as the rest of the population’.

3

The word ‘minorities’ under the Turkish Constitutional System only encompasses groups of persons defined and recognized as ‘non-Muslim minorities’ following section 3 of the Treaty of Lausanne (1923). Thus, as the majority of Kurds follow

Sunni Islam, 4 they are excluded from minority protection. This exclusion of the

Kurds from the Lausanne definition is problematic and has detrimental consequences.

5 Turkey’s operation within a Constitutional framework grounded in ethnic nationalism denies the Kurds from inclusion in protective legal provisions, and grants an informal legitimacy to the country’s denial of Kurdish identity and its attempts to subjugate and assimilate the Kurds.

A Government-commissioned report by the Turkish Human Rights Advisory Board found that Turkey’s definition of minorities was too restrictive and did not accord with current thinking, which accepts that minorities exist where communities are

‘ethnically, linguistically and religiously different’.

6 Professor Baskin Oran and

Professor Ibrahim Özden Kaboglu, the authors of the report, subsequently faced criminal proceedings under Articles 216 and 301 of the Penal Code as a result of their views.

7

2.2

Lack of a comprehensive legal framework on anti-discrimination

Whereas Turkey claims that there is a sound legal framework in place to prevent all forms of discrimination, 8 in reality there is no comprehensive law on antidiscrimination in Turkey.

Although Article 10 of the Turkish Constitution generally provides a guarantee of equality before the law, adequate protection of minorities must also include legislation promoting the separate identity of minorities, for example, within the realm of cultural and language rights.

9 Moreover, Article 66 of the Constitution

3 CERD/C/TUR/3, paragraph 31

4 David McDowall, A Modern History of the Kurds , (IB Tauris and Co. Ltd., London, 2004), 1-2



6 Turkish Daily News

, ‘Minority Phobia Haunts Turkey’ (REFERENCE?)

7 For detailed information on the trial proceedings see KHRP Trial Observation Report, Suppressing

Academic Debate: The Turkish Penal Code , (KHRP, London, June 2006)


9 KHRP Shadow report, NGO Shadow Report for the Review of the Turkish Government Under the UN

International Convention on the Elimination of All Forms of Racial Discrimination (CERD), (KHRP,

London, February 2009), 13

4

defines citizenship with the word ‘Turk’ rather than in terms of ‘citizens of Turkey’ and thus directly violates the principle of anti-discrimination.

In addition to the ineffective legal framework on anti-discrimination, the failure of the Turkish state to undertake effective investigations of human rights abuses has been highlighted in a significant number of cases brought before the European Court of Human Rights (ECtHR).

10

2.3

Anti-terror legislation

In June 2006, Turkey amended its anti-terror law, the Law on the Fight against

Terrorism (Act 3713). These amendments addressed a security agenda and although

Turkey’s goal of maintaining national security is understandable, it should not come at the expense of fundamental human rights. Consequently, the new law fails to respect international treaties to which Turkey is signatory by containing a definition of terrorism that is too vague, by dramatically increasing the range of ‘terrorist’ offences, by putting serious restrictions on fundamental freedoms, and by jeopardizing the prohibition of torture and obstructing the rule of law.

11

Article 2 of Law 3713, which allows the security forces to use disproportionate violence against individuals, is of particular concern. As a result of the disproportionate effect of the application of laws, violence against the Kurdish population in Turkey has always been more severe and systematic compared to other sections of society as a result of the policy and practice of oppressing the

Kurdish minority.

12

On 24 March 2006, 14 pro-Kurdish guerrillas were killed by the Turkish security forces in the mountains in Diyarbakir province. During their funerals in Diyarbakir city, security forces opened fire and used tear gas and truncheons against the mourners. A total of eleven people died, including three children, seven of them as a result of being shot by members of the security forces. According to an investigation and observation report by the Human Rights Association (HRA), 563 persons were arrested and many were charged and detained. Despite 350 people applying to the

10 Tunç v Turkey , Application No 24014/05; Aydin and Others v Turkey , Application No 14871/09;

Sinan Yildiz v Turkey , Application 37959/04; Demopoulos v Turkey , Application 46113/99; Babat and others v Turkey , Application 44936/04; Kalender v Turkey , Application 4314/02; Oyal v Turkey ,

Application 4864/05; Cemalettin Canlı v Turkey (no 2) , Application 26235/04; Z.N.S. v Turkey ,

Application 21896/08; Abay v Turkey , Application 19332/04; Adalmış and Kılıç v Turkey , Application

25301/04; Kart v Turkey , Application 8917/05; Musa Karataş v Turkey , Application 63315/00; Narin v

Turkey , Application 18907/02; Sabri Aslan and Others v Turkey , Application 37952/04;

Kemal Taşkin and others v Turkey , Application 45609/05; Mustafa and Armağan Akın v Turkey , Application

4694/03; Sinan Işık v Turkey , Application 21924/05; Akdaş v Turkey , Application 41056/04; Görkan v

Turkey , Application 13002/05; Savgın v Turkey , Application 13304/03; Üper and others v Turkey ,

Application 55036/07



12 KHRP Shadow report, NGO Shadow Report for the Review of the Turkish Government Under the

UN International Convention on the Elimination of All Forms of Racial Discrimination (CERD),

(KHRP, London, February 2009), 6

5

HRA claiming torture and ill treatment, there has not been any investigation against any member of the security forces nearly three years after the incidents.

13

Further, Kurds have been charged under Article 7/2 of Law 3713, the law on

‘propaganda of illegal organisations’, as a result of conducting peaceful activities that entail their expression of Kurdish ethnicity. Additionally, prosecution under the

Turkish Penal Code also illustrates instances of racism and xenophobia, and this will be discussed in more detail below.

There also remain issues related to the juvenile justice system and to the application of anti-terror law. Although in this area, legislative reforms suggest that Turkey has made positive progress towards meeting its international obligations to prohibit the incitement to racism, Child Protection Law reveals discrepancies that in practice create an unfavourable environment in preventing discrimination based on race and cultural heritage. For example, Article 6 of the Law on Formation, Duties and Trial

Methods of Juvenile Courts reads that ‘cases regarding crimes committed by children younger than 18 and debated by general courts are to be debated by juvenile courts’.

14 However, if a child is charged under Turkish anti-terror legislation when they are aged between 15-18 years, there is an exception and the child is tried as an adult. Further, it has been found that the Child Protection Law is merely used to reduce the length of sentences in cases involving juveniles, instead of providing for the protection of children as a vulnerable group.

15

This legal apparatus that appears to protect children also suffers from a poor legal infrastructure that has led to it becoming congested and weakened, 16 as well as poorly applied in judicial practice. Consequently, it has been found that no specific children’s court exists, and instead, children are tried under a regular court, which simply changes its name.

17 Legal protection is thus rendered ineffective as the same court judge and prosecutor try adults and children alike.

Consequently, children are more naïve when taking part in demonstrations, and can thus be exploited by authorities and police officers if they are detained and questioned. Furthermore, under anti-terror legislation, children are detained as soon as they are brought before a judge and are kept for long periods of time before trial, despite International legal standards and Turkish laws stipulating that children should only be deprived of their liberty as a measure of last resort and for the shortest possible time. In an environment where representation for children within the justice system is weak, and considering the detrimental effects of detainment and imprisonment on social and psychological development, 18 juvenile justice is an area of pressing concern.

13 KHRP Fact-Finding Missions Report, Indiscriminate Use of Force: Violence in South-east Turkey ,

(KHRP, London, September 2006), 17-24

14 Turkish Press, Cicek: Turkey has Taken an Important Step on the Way to EU , 22 September 2004

15 FFM interview with Mr. Selahattin Coban, Chairman, Mazlumder, 19 June 2004, Diyarbakir



17 FFM interview with Ms. Ilknur Yokuş Taniş, Head of the Women and Children Commission, Mr.

Nŭrîrevan Elai, Chair, and Ms. Rüya Elai, and Ms. Dirşeng Bartan, Şirnak Bar Association, 22 June

2008

18 Bianet ‘One Child Dead, His Friends in Prison- Justice?’, 30 January 2009, at

6

2.4

Prosecution under the Turkish Penal Code

Although the Turkish Penal Code aims to prevent racist remarks and protect vulnerable groups, it is instead ironically applied to protect the state from its supposed separatist citizens.

19 Many charges are made against Kurds who wish to conduct peaceful activities that entail their expression of Kurdish ethnicity.

Kurdish people have been discriminately arrested under Turkish Penal Code legislation such as Article 301 (‘degrading the Turkish nation, the Republic, the

Organs and Institutions of the State’), Article 314 (‘armed organisation’), and Article

220/8 (‘propaganda for the illegal organisation or its objectives’).

The Human Rights Agenda Association President, Orhan Kemal Cenzig, in a report on discrimination and intolerance in Turkey, 20 focused on declarations and incidents of violence based on racism and intolerance in order to understand the damage created by discrimination. He cited as an example the events that unfolded after the celebration of Newroz in Merson when two children aged 14 and 12, attempted to burn a Turkish flag. In Trabzon, later, a rumour of a burning flag resulted in an attempted lynching of four students by thousands of people even though the students were merely distributing leaflets protesting poor conditions in prisons.

Furthermore, Article 216 of the Penal Code, which prohibits incitement to racial hatred, does not apply in practice to oral, written or other expressions targeting minority groups.

21 The restriction of this law’s use to cases where public order is jeopardised, yet, its use without real justification by public prosecutors, 22 demonstrates how the balance in this area between protecting rights and infringing upon rights is skewed towards the latter.

A particularly suitable example is the ruling from the Bolu High Penal Court that a newspaper article urging the public to kill members of the Democratic Society Party

(DTP) for not labelling the PKK a terrorist organisation, did not contravene Article

216.

23

Ironically, in a contrasting case in 2007, the Penal Court in Viransehir convicted

Kurdish human rights activist and lawyer Eren Keskin of ‘incitement to hatred and hostility’ under Article 216 for saying, ‘If we look at the state statistics on perpetrators of sexual violence in Turkey and Kurdistan, then soldiers are in the http://bianet.org/english/kategori/english/112235/one-child-dead-his-friends-in-prison-%E2%80%93justice (last accessed 14 September 2010)

19 Turkish Daily News ‘Discrimination and Intolerance in Turkey’, 12 September 2005, at http://www.turkishdailynews.com.tr/article.php?enewsid=22860 (last accessed 21 September 2010), 1

20 Turkish Daily News ‘Discrimination and Intolerance in Turkey’, 12 September 2005, at http://www.turkishdailynews.com.tr/article.php?enewsid=22860 (last accessed 21 September 2010)




22 European Commission against Racism and Intolerance Third Report on Turkey , CRI(2005), adopted on 25 June 2004.

23 Today’s Zaman “Ethnic tensions rise in Aegean town of Altinova”, 03 October 2008. See http://www.todayszaman.com/tz-web/detaylar.do?load=detay&link=154793 , (last accessed 7

September 2010)

7

majority; the reason there are so many is the war in Kurdistan’.

24 Public prosecutors therefore contravene Turkey’s international obligations under Article 4 of CERD in this way.

2.5

Restrictions on political participation by members of minority groups

Political participation by members of minority groups, particularly by Kurds, is highly restricted by the State and reveals many instances of racial discrimination.

The Turkish electoral system maintains that political parties must gain 10 per cent of the national vote in order to enter parliament, 25 and this high entry level discriminates against the Kurds who have strong regional support but whose national vote does not add up to the required percentage. In addition, other restrictions occur on political campaigning, and there exist severe limitations on the content of political posters and where they may be placed.

These impediments to the realisation of a genuine democracy in Turkey are further enhanced by the effective exclusion of Kurdish parties and political representatives based on language. The prohibition of the use of languages other than Turkish in campaigning is stated in Article 81(c) of the Political Parties Law, 26 and was reiterated in Turkey’s report to CERD.

27 These legal provisions have mainly been used against pro-Kurdish parties, many of whose supporters or electors cannot speak

Turkish.

28

In 2007, executives of HAK-PAR (Rights and Freedoms Party) were imprisoned under the Political Parties legislation for using the Kurdish language in an invitation and for speaking Kurdish.

29 This is one of many instances of restrictions in political freedom, and there is a wealth of examples of prosecution of individuals. For instance, in 2008, Ibrahim Ayhan, an independent candidate for parliamentary elections, was also sentenced under Article 81(c) for playing Kurdish music during the election campaigns. In another case, Etem Sahin, the mayor of Suruc-Diyarbakir, was sentenced to 21 months in prison for speaking Kurdish during his election campaign and for violating Article 2911 regarding the ‘Law on Demonstrations and

Marches’.

30

24 Bianet, ‘Bia 2007 Media Monitoring Report – Full Text’. See http://www.bianet.org/bianet/kategori/english/104719/bia%C2%B2-2007-media-monitoring-report-

%E2%80%93-full-text (last accessed 14 September 2010)




26 Article 81 (c) states “Political parties... (c) cannot use a language other than Turkish in writing and printing party statutes or programs, at congresses, indoors or outside; at demonstrations, and in propaganda; cannot use or distribute placards, pictures, phonograph records, voice and visual tapes, brochures and statements written in a language other than Turkish; cannot remain indifferent to these actions and acts committed by others. However, it is possible to translate party statutes and programs into foreign languages other than those forbidden by law





29 See http://www.ihd.org.tr/eana.html, 23 September 2007

30 Media Institute of West Kurdistan Sociaety – Afrin 10 June 2010

8

2.6

Discrimination in judicial procedure and public policy based on cultural differences

Language-related discrimination extends much further than in restricting political participation. Judicial processes restricting language and translation decreases access to justice for minority citizens, and the broader failure of the state to provide public education in minority languages enhances Turkey’s shortcomings in prohibiting the incitement to racial and ethnic hatred.

Individuals whose mother tongue is Kurdish are often brought before judicial proceedings that are only conducted in Turkish. Additionally, there is no established interpretation service for Kurdish language within Turkish domestic court proceedings.

31 In October 2008, five Kurdish women were arrested in Istanbul for allegedly publishing propaganda in support of the PKK. When they informed the court that they could not speak Turkish, the court appointed a cleaner as a translator, who did not know enough Kurdish to properly translate.

32

The wider context of discrimination is highlighted by the failure of state to provide public education in minority languages. Article 42 of the Turkish Constitution states that ‘No language other than Turkish shall be taught as a mother tongue to Turkish citizens at any institutions of training or education… ’. Although the Government took a step by amending the Foreign Language Education and Teaching Law to allow private courses to teach the different languages traditionally used by Turkish citizens, 33 any resulting private courses have since been closed down because of bureaucratic restrictions, people’s reluctance and inability to pay, and due to the regulation’s significant restrictions on curriculum, teachers and enrolment.

34

2.7

Right of minorities to participate in the activities of trade unions, right of minorities to broadcast

Legal issues regarding the right of minorities to participate in the activities of trade unions and the right of minorities to broadcast, indicate that legal mechanisms in these areas are discriminatory and severely restrict the freedom of association and freedom of expression of minority citizens.

Turkey has not yet adopted a pro-union stance that values unions as necessary social participants within a democratic system. KHRP has found that harassment of trade unions and their members is a particular problem in southeast Turkey and that this is contributing to the de facto state of emergency there.

35 Additionally, many domestic




32 Evrensel, “Temizliği bırak tercümeye gel!”, 28 October.2008. See http://www.evrensel.net/haber.php?haber_id=39333 (last accessed 14 September 2010)




34 Minority Rights Group International Report, “A Quest for Equality: Minorities in Turkey” 2007. See http://www.avrupa.info.tr/Files/MRGTurkeyReport%5B1%5D.pdf

, (last accessed 14 September 2010)

35 KHRP Fact-Finding Mission, Return to a State of Emergency? Protecting Human Rights in South-

East Turkey , (KHRP, London, June 2008), 55-56

9

laws impede the safeguarding of trade union rights. For example, the Trade Unions

Act (no.2821), and the Collective Labour Agreements, Strike and Lockout Act

(no.2822) contain provisions that fundamentally impair the function of trade unions in breach of the right to organise.

Despite the launch of Turkey’s first 24-hour Kurdish-language television station,

TRT-6, the extent to which the television station and other broadcasting mechanisms will be allowed to operate free from Government interference and restrictions remains to be seen.

36 KHRP has found that restrictions on broadcasting remain in place and severely obstruct the work of Kurdish language broadcasters.

37 Kurdish language broadcasters have faced a pattern of investigations, threats, heavy penalties, and forced closures.

38

Kurdish newspapers have also been subjected to similar grievances and further restraints on the use of minority languages in the public arena remain. In 2006, a

Diyarbakir court closed the Kurdish Democracy Culture and Solidarity Association

(Kürt-Der) for infringing the Associations’ Law by conducting its internal business in

Kurdish.

39

2.8

South-east Turkey remains economically marginalized by discriminatory policies

The ability of Kurds to participate in everyday life and to access their economic, social, and cultural rights is infringed by the economic gap between southeast

Turkey and western Turkey.

A Regional Economic View Report, prepared by the Union of South-eastern

Municipalities (GABB), indicates that the segregationist economic policies executed by the Government in the east and south-east of Turkey have played a significant role in increasing poverty and unemployment.

40 The report showed that the Turkish

Statistical Institute has not yet released data on the distribution of national income by regions and provinces since 2001, and that the Government has been trying to hide the economical and social ruin in the provinces of the southeast.

41

The Southeastern Anatolia Project (GAP) has negative consequences for the elimination of discrimination. For example, the controversial Ilisu Dam project – a


UN International Convention on the Elimination of All Forms of Racial Discrimination (CERD) ,


37 Fact-Finding Mission Report, Reform and Regression: Freedom of the Media in Turkey (KHRP,

Article 19, Index on Censorship, the Bar Human Rights Committee of England and Wales, the Centre for European Studies, London, October 2007), 51-58




39 Human Rights Watch, ‘2007 World Report: Turkey,’ http://hrw.org/englishwr2k7/docs/2007/01/11/turkey14845.htm

(last accessed 30 October 2008)

40 Hurriyet Daily News “Gap project did not help Southeast, says report” See http://www.hurriyet.com.tr/english/domestic/10659117.asp

(last accessed 03 February 2009)




10

crucial part of GAP that includes a network of 22 dams and 19 power plants – threatens to exacerbate regional conflict and displace up to 78,000 people. The displacement of so many would add to the estimated 3 million IDPs created by the last two decades of conflict, who have yet to receive appropriate or equitable redress for their long displacement from their traditional lands and as a result, move to the regional cities where they must live in appalling conditions.

2.9

Gender equality issues

Although legislation provides for women to have the right to equal education, in practice, there are problems with women’s access to education, which, in Turkey, is the lowest among the EU Member States and the OECD countries.

42 According to the

2008 Human Development Report titled “Youth in Turkey”, girls suffer from gender discrimination and are being deprived of schooling.

43 The effects of restricting women’s right to education include denying them access to information about their rights, access to justice, and access to mechanisms, which helps to free them from violence.

The gender gap disproportionately affects girls from the Kurdish regions of Turkey, who are less likely to be enrolled in schools compared to the rest of Turkey.

44

Extreme poverty caused by forced migration, loss of assets and unemployment exacerbates this situation by making families dependant on child labour. Language is also a great barrier to Kurdish girls accessing education, as the only language of instruction in mainstream schools is Turkish.

Violence against women remains a major problem in Turkey in practice. Despite amendments in 2007 to the Family Protection Law (no. 4320), the implementation of the legislative framework is onerous and ineffective.

45 Police officers are usually reluctant to investigate domestic violence cases, many officers are not trained in women’s rights, and prosecutors and judges have differing viewpoints on the implementation of various measures.

In addition, honour killing is still prevalent among communities in Turkey. Despite the Turkish Penal Code legislation (no. 5237) reforms, which qualify crimes committed for the sake of honour and do not permit the reduction of sentence in honour killing cases, the Court of Cassation has established a new condition which negates the improved reforms. The 1 st Criminal Department of the Court of

Cassation decided that ‘if there is no proof showing that the crime is committed by the decision of family council it can not be defined as an ‘honour killing’.

46

42 Commission Of The European Communities “Turkey 2008 Progress Report”, Brussels, 05.11.2008.

See http://www.pbs.org/newshour/indepth_coverage/europe/turkey/progress_report_08.pdf

, (last accessed 21 Sept 2010)

43 Turkey 2008 Human Development Report. “Youth in Turkey”, UNDP, March 2008, p. 31. See http://europeandcis.undp.org/home/show/7153E9AF-F203-1EE9-B3404D3FE67422D4 (Accessed on

21 Sept 2010)





UN International Convention on the Elimination of All Forms of Racial Discrimination (CERD ),


46 See http://www.porttakal.com/haber-tore-cinayeti-ne-yeni-tanimlama-95874.html

11

C. Summary of the manifestations of contemporary forms of racism and xenophobia in Syria

1.


Syria

Human rights abuses against Syria’s Kurdish population are serious and ongoing, and Syria’s human rights record is continually deteriorating. Kurdish people in Syria consist of approximately 10 per cent of the country’s population, and there is mounting acknowledgement by humanitarian organisations, the UN, and government bodies that there is currently a well-founded fear of persecution of

Kurds in Syria on the grounds of race.

47

The severe restrictions on cultural and linguistic expression imposed on the Kurds and the pervasive human rights abuses against them, is in a large part due to their statelessness. The refusal of the Syrian state to reinstate citizenship to 360,000 Kurds who were stripped of it in 1962, 48 creates a fertile environment in which racial discrimination and xenophobia thrive. In addition, a state of emergency has been in force since 1963, giving authorities unlimited power to restrict the rights of Syrian citizens, and allowing suspects to be arrested and held incommunicado for prolonged periods without charge.

49 Within the Syrian Constitution, Article 113 legitimises the state of emergency, permitting the President to take immediate unspecified measures necessitated by the circumstances to face the danger. The unspecified nature of these measures provides carte gives the president and his delegates a carte blanche to suppress domestic dissent.

50

2. Discrimination of Kurdish Population within the Constitutional Framework of Syria

Article 1 of the Syrian Constitution describes Syria as a “democratic, popular, socialist and sovereign state.” However, many facets of Syrian politics contradict this concept, as will be seen in this chapter.

Access to political power in Syria is highly selective, due to wasta, an Arabic term for personal connections. Syrian politics is underpinned by an intricate vertical patronage network and gaining admittance to this network requires with connections to influential individuals or access to money with which to obtain influence and favours.

47 KHRP Submission, Submission to the Office of the United Nations High Commissioner for Human

Rights, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, (KHRP, London, June 2010), 43



49 Fredom House, Freedom in the World 2010 Report, see http://kurdistancommentary.wordpress.com/2010/06/13/spanish-campaign-raises-awareness-ofkurdish-politicalprisoners-in-syria/ (last accessed 14 September 2010)

50 Kerim Yildiz, The Kurds of Syria: The Forgotten People , (Pluto Press, London, March 2005), 53

12

This concept of patronage has permeated throughout Syrian society, so that access to state benefits, employment, subsidies and other aspects of daily life often depends on an individual developing the appropriate connections. Although in theory anybody can develop such connections and benefit both socially and economically by gaining access to decision makers, access to such a network requires demonstrating loyalty to the Ba’th ideology and regime. The existence of social and economic benefits associated with showing such loyalty creates a disincentive to represent interests other than those approved by the Ba’thists and thus ensuring representation of minority groups such as the Kurds is difficult.

51

Under Article 83 of the original Constitution, candidates for the Presidency of the

Republic must be an Arab Syrian over the age of 40, although following the death of

Hafiz al-Asad, the age requirement dropped to 34; conveniently, this was the precise age of Bashar al-Asad.

52

2.1

Legal effect of the statelessness of Kurds in Syria

The lives of Kurds are seriously and discriminately afflicted by the results of not being recognized as citizens of Syria. Kurdish people in Syria are unable to vote and to own property; their employment opportunities and access to higher education are restricted, and they may not marry or move freely within or outside of the country.

A large portion of the electorate is unable to vote, and KHRP has found that the amount of people in Syria unable to vote is growing steadily.

53 Additionally, Kurds are unable to own property in Syria, yet they must still pay property tax on land they do not legally own.

The lack of employment opportunities for stateless people in Syria is of pressing concern, as Kurds work informally outside the ambit of legal protection of employment rights. Kurdish people in Syria may therefore also suffer in relation to remuneration, as they cannot open bank accounts thus allowing employers to dismiss their claims for payment.

54 These issues affect children and women differentially and more substantially, as stateless children and women work in order to assist their families and therefore bear an increased burden. The dire consequences created by these circumstances contravene the Convention on the Rights of the Child, in which Syria as a signatory must ensure that children are protected from work that is dangerous or might harm their health or education.

55

According to the Convention on the Rights of the Child, all children in Syria must also have access to primary education, 56 and whilst this is available, the opportunity to progress into higher education is extremely tough as current policy prevents stateless





55 UN Convention on the Rights of the Child, resolution 44/25 of 20 November 1989, Art 32

56 UN Convention on the Rights of the Child, resolution 44/25 of 20 November 1989, Art 28

13

children from receiving a certificate after graduating.

57 Further, formal education is only conducted in Syrian Arabic. This lack of access to education decreases the chances of employment for stateless Kurds, and results in an increased divide in socio-economic well-being and equality.

According to Article 3 of the Nationality Law (no.276 of 1969), marriages of Kurds in

Syria are not recognized by courts. Additionally, Kurdish parents are therefore unable to register their children. As stateless Kurds have no travel documents, they have to rely on illegal methods to exit Syria, where the penalty could be imprisonment and torture. International sources report numerous instances of stateless Kurds being tortured after leaving Syria. Diplomatic assurances created between states have proved to be an ineffective remedy for these issues.

58

Moreover, as confirmed by Olivier De Schutter, the UN Special Rapporteur for Food, the inability of Kurds to benefit from the public distribution of subsidized food is a central concern and significantly restricts their ability to subsist.

59

2.2

The use of torture against Kurds in Syria

The Committee Against Torture (CAT), has reported recently that there is widespread use of torture, ill-treatment, death in custody and incommunicado detention throughout the Syrian criminal justice system, and in particular to Kurdish political activists.

60

As well as being signatory to a number of international instruments prohibiting the use of torture, 61 the Syrian constitution also forbids it.

62 Torture is not defined legally in Syria however, and people are thus unaware if they may be a victim, and are unsure about the gravity of the offence. The legal uncertainty surrounding torture in

Syria results in a lack of redress for victims of torture and other cruel punishment.

There is a wealth of evidence from victims of torture in Syria. As one example among many, Osman Mihemed Silêman Hecî, who served as a Syrian MP, was tortured and

57 Kurdwatch, Stateless Kurds in Syria: Illegal Invaders or victims of a nationalistic policy?, Report 5,

March 2010, 19, at http://www.kurdwatch.org/pdf/kurdwatch_staatenlose_en.pdf

(last accessed 14

September 2010)

58 Human Rights Watch, ‘Empty Promises: Diplomatic Assurances No Safeguard Against Torture’,

April 2004, D1604. Last accessed on (23 September 2010)

59 United Nations, UN Special Rapporteur on the right to food: Mission to Syria from 29 August to

September 2010, at http://www2.ohchr.org/english/issues/food/docs/SyriaMissionPreliminaryConclusions_07092010.pdf

(last accessed 27 Sept 2010)

60 Committee Against Torture, forty-fourth session, 26 April – 14 May 2010, 3, at http://www2.ohchr.org/english/bodies/cat/docs/CAT.C.SYR.CO.1.pdf

(last accessed 20 Sept 2010)

61 Syria has ratified the Convention against Torture and Other Cruel, Inhuman or Degrading

Treatment or Punishment and the International Covenant on Civil and Political Rights 1966 . Article 7 prohibits torture or cruel, inhuman or degrading treatment or punishment.

62 Constitution of the Syrian Arab Republic, Article 28(3)

14

died as a result of his injuries.

63 Additionally, Human Rights Watch interviewed 30 former prisoners and found that 12 had been victims of torture.

64

Despite these findings of many instances of torture and inhumane and degrading treatment, in 2008, the government failed to investigate any reported torture cases.

65

People in Syria are therefore deterred from reporting cases of torture due to a belief that no action will be taken.

2.3

Arrests, detainment and prison conditions

Syria has implemented legislation aimed at outlawing arbitrary arrests, 66 incommunicado detention, 67 the use of force against detainees, 68 and which guarantee the rights of detainees to medical treatment and to contact with their families.

69 International human rights jurisprudence deems all of these methods as torture, 70 however, despite legislative safeguards; the use of these practices against politically active Kurds is widespread and habitual.

71

Moreover, Syrian prisons are considered poor, with overcrowding, lack of hygiene, insufficient food, health risks and inadequate health care.

72 No official data collection system with which to record conditions and the treatment of prisoners exists.

According to the same Human Rights Watch study, a very high percentage of detainees complained of being treated in a degrading manner by prison staff.

73 The many cases raised by KHRP with OHCR, demonstrate that detainees are treated in ways that breach international legal provisions on detainment and prison conditions.

74

2.4

Disappearances and deaths in military service

63 KHRP press release, ‘Kurdish Politician Tortured to Death in Syria’, 20 February 2008. See KHRP

Submission to the Office of the United Nations High Commissioner for Human Rights, Special

Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, (KHRP, London, June 2010) for more examples

64 Human Rights Watch, ‘Group Denial: Repression of Kurdish Political and Cultural Rights in Syria’,

November 2009, 1-56432-560-1, 45. Last accessed on (20 September 2010)

65 U.S. Department of State, 2009 Human Rights Report: Syria, March 11 2010, at http://www.state.gov/g/drl/rls/hrrpt/2009/nea/136080.htm

(last accessed 20 September 2010)

66 Article 214 of the Police Service Regulations

67 Article 105 of the Code of Criminal Procedures

68 Article 30 of the Prison Regulation of 1929 and Act No. 496 of 1957

69 Committee against Torture, ‘Consideration of reports submitted by States parties under article 19 of the Convention: The Syrian Arabic Republic,’ 16 July 2009, paras 98 and 99

70 UN General Assembly, UN Soc. A/RES/60/148, 16 December 005, Article 11; UN Convention on

Human Rights, UN Soc. E/CN.4/RES/2005/39, 19 April 2005, article 9




November 2009, 1-56432-560-1, 45. Last accessed on 20 Sept 2010, 13


November 2009, 1-56432-560-1, 45. Last accessed on 20 Sept 2010, 48

74 See KHRP Submission, Submission to the Office of the United Nations High Commissioner for

Human Rights, Special Rapporteur on contemporary forms of racism, racial discrimination, xenophobia and related intolerance, (KHRP, London, June 2010), 46

15

Many Kurdish citizens have disappeared after being arrested, and security agents often make arrests without disclosing the whereabouts of detainees.

75 For example, on 14 February 2010, Bozan Abdelkader Bozan was arrested by the criminal security service without any information about where he is being held, though he previously suffered a stroke and bleeding in his brain.

76

There is also a growing trend of deaths of Kurdish conscripts who have died whilst carrying out their military service and whose bodies were returned to the families with evidence of severe injuries. It has been noted that some 34 Syrian soldiers of

Kurdish origin have died suspiciously since 2004 while doing military service.

77 The death of young Kurds such as Najm al-Din Hassan Daallo, who was killed among mysterious circumstances with the army reporting suicide, cases panic and distress amongst Kurdish families who fear for the fate of their children whilst they perform their obligatory service in the Syrian army.

78

2.5

Military court sentencing

Some convictions handed down to Kurdish detainees by military courts have been given on vague charges of ‘weakening national sentiment’ or ‘spreading false or exaggerated information’. Referrals to Military Courts are a popular route of prosecution and such referrals are made possible by the Emergency Law that has been in place since 1963.

79

According to a Human Rights Watch report, the problem lies within the substance of the military court trials, wherein the charges are driven by the overbearing security apparatus.

80 Courts are thereby able to punish a very wide range of expressions of peace. Applying provisions in such an arbitrary and subjective manner has led interviewed subjects to state that ‘there are no fair trials for activists and politicians in Syria’.

81

D. Summary of the manifestations of contemporary forms of racism and xenophobia in Iran

1.


Iran

There are around 6.5 million Kurds in Iran, and discrimination often has a religious dimension, occurring against Sunni Kurds in Shi’a Iran. State motives for repression

75 Media Institute of West Kurdistan Society – Kobani, 4 June 2010

76 Media Institute of West Kurdistan Society – Kobani, 4 June 2010



78 Media Institute of West Kurdistan Society – Afrin, 10 June 2010

79 Legislative Decree No. 51 of December 22, 1952, art. 4


November 2009, 1-56432-561-X. Last accessed on 23 Sept 2010, 169

81 Human Rights Watch interview with C.C., June 25, 2009

16

of Kurds are based on but not limited to security issues, and Kurds have often been more actively involved in resistance against the Iranian regime than other groups.

82

Security laws and press laws, among other legislation, are used by Iranian authorities to prosecute Iranian Kurds for merely trying to exercise their basic right to freedom of expression and association. According to Human Rights Watch, the government has executed at least seven Kurdish political dissidents whom were charged with the vaguely defined crime of moharabeh, or ‘enmity against God.

83

Additionally, more than a dozen Kurdish dissidents sit on death row at imminent risk of execution.

There have been various crackdowns on journalists and human rights defenders.

According to the Committee to Protect Journalists, over 37 journalists are currently imprisoned, with around 19 more free on bail and awaiting trial. As a result of this atmosphere of suppression, many journalists flee Iran to the neighbouring Turkey.

84

The Iranian government has also closed Kurdish-language newspapers and journals, banned books and punished publishers, journalists and writers for speaking out about government policies. Authorities also suppress legitimate activities of nongovernmental organisation with grave security offences.

2. Discrimination of Kurdish Population within the Constitutional Framework

of Iran

Although the 1979 constitution ostensibly grants equal rights for all ethnic minorities

(Article 19), practitioners of other schools of Islam (Article 12), as well as the granting of the use of minority languages in the media and schools (Article 15), these rights are not manifested. Further, Persian ethnicity is the defining identity of the state and civil society.

i Articles 3(14) and 19 which provide assertions that all Iranians are equal, and thus all enjoy equal rights, precludes the acknowledgment of difference or privilege based on colour, race or language.

ii Thus Kurds and all other non-Persian ethnic groups living in Iran are not implicitly recognized. While religious minorities are recognized, only Jews, Christians and Zoroastrians are identified, thus the protection of minority rights guaranteed under article 13 of the constitution does not apply to the large population of Sunni Kurds.

The Iranian government maintains that Kurds enjoy their rights as full members of society as evidenced by the members in the Iranian Parliament, and the presence of

Kurdish language TV and radio stations. However, in reality the government maintains a discriminatory policy against the Kurds, denying them high government posts, overlooking Sunni candidates, and denying public school education in

Kurdish. Further, Kurdish political organizations are banned, and the Iranian government regularly jails and sometimes executes members of banned Kurdish political organizations, such as the KDP-I and Komala. In terms of education, there is a fundamental lack of attention from authorities and economic planners in providing



83 HRW news, Iran: Crisis Deepening One Year After Disputed Elections, Pressure Mounting on

Iranian Civil Society, 10 June 2010

84 HRW news, Iran: Crisis Deepening One Year After Disputed Elections, Pressure Mounting on

Iranian Civil Society, 10 June 2010

17

for the growth of educational centres, especially in supplying accommodation for secondary and post-secondary education in Kurdish rural areas. Although there are a number of Kurdish MPs in parliament, they must operate under state policy that denies difference, and does not allow for the Kurds to operate from a political space.

While some space exists to assert Kurdish cultural identity, there is no space given for them to operate as Kurds politically.

The underdevelopment of the Kurdish regions leads to economic marginalization, which severely inhibits the Kurds from actively participating in Iranian public life.

This also leads to a general frustration with the government, as well as fuels demands for autonomy. Many Kurds feel that their region suffers from intentional underdevelopment at the hands of the government. Although it is evident that the government is aware of these shortcomings, they continue to ignore the situation, failing to deliver on promises offered to meet the Kurds demands for the attainment of the rights guaranteed to them in the constitution, particularly under Article 48, which ensures that each region has access to facilities and capital, through the equal distribution of public revenues and economic activity.

85

2.1. Discriminatory State Structure

Although in theory the constitution of the Islamic Republic of Iran guarantees equal rights to ethnic and recognised religious minorities (not including Sunni Muslims), practically, these rights are not realised. The Islamic government has openly pursued a policy of refusing to hire Iranian Sunnis in mid and high-level positions.

A major part of the government’s discriminatory practice towards the Kurds includes the denial of government posts, not only in these mid and high-level positions, but also local positions in the predominantly Kurdish regions, to Sunni

Kurds. Instead, these administrative posts are given to non-Kurdish officials, often coming from the state’s security forces.

86

2.2. Arrests and detentions of Kurdish persons in Iran

There currently exists a lack of information on arrests and detentions of Kurdish persons in Iran. There is no viable data collection source, and it has been difficult for reports from international organisations to analyze how legislation operates in practice with respect to this area.

There are however, instances where individuals have been inappropriately detained.

For example, around 10 teachers have been inappropriately detained, and one teacher, Farzad Kamangar, was hanged on 9 May 2010.

2.3. Executions of Kurdish persons in Iran

Executions by Iranian authorities violate Iran’s international obligation under the

UN’s Covenant on Civil and Political Rights and the Convention on the Rights of the

Child not to sentence to death those under the age of 18 at the time of their offence.

85 Kerim Yildiz, The Kurds in Iran: The Past, Present and Future , (Pluto Press, London, 2007), 31-32

86 Kerim Yildiz, The Kurds in Iran: The Past, Present and Future , (Pluto Press, London, 2007), 43

18

Iranian authorities have been responsible for the execution of many prisoners, and in

May 2010, executed four prisoners of Kurdish descent without any warning to families or lawyers, and with a refusal to release the bodies.

87 Seventeen Kurds are also presently facing execution. Executions of terror suspects like these occur with neither the accumulation of proper evidence nor a trial, and KHRP has raised concern of the gravity of executions in an urgent action letter dated 9 November

2009.

88





19

WORKSHOP PAPER SUBMITTED TO THE OFFICE OF THE 1

WORKSHOP PAPER SUBMITTED TO THE OFFICE OF THE

HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)

Submitted by Kurdish Human Rights Project

September 2010

Related documents

Products

Support

WORKSHOP PAPER SUBMITTED TO THE OFFICE OF THE 1

WORKSHOP PAPER SUBMITTED TO THE OFFICE OF THE

HIGH COMMISSIONER FOR HUMAN RIGHTS (OHCHR)

Submitted by Kurdish Human Rights Project

September 2010

Related documents

Add this document to collection(s)

Add this document to saved

Suggest us how to improve StudyLib