The “EU Global Human Rights Sanctions Regime” and Turkey

The Council of the European Union adopted the long-striven “EU Global Human Rights Sanctions Regime” on December 7^th, 2020.[1] This new mechanism of the European Union, which is founded on the values of respect for human dignity, democracy, equality, the rule of law, and the protection of fundamental rights and freedoms, is taken as a response to the encroachment of universal human rights by the EU Member and Non-Member States, non-state actors, and the EU/non-EU citizens, and seeks to introduce a set of preventive measures to tackle widespread and systematic human rights violations across the globe.

The draft prepared by Joseph Borrell, the High Representative of the European Union for Foreign Affairs and Security Persons, was presented to the Council on December 9^th, 2019, and received considerable attention and support. On November 17^th, 2020, the Council had also already adopted the “EU Action Plan on Human Rights and Democracy 2020-2024” [2], with a note that the EU developed a human rights sanctions regime against serious and grave human rights violations and abuses worldwide.

In his blog post, Borell explained that the draft is inspired by the “Sergei Magnistky Rule of Law Accountability Act”, a bill signed into law by the former US President Barack Obama in December 2012 in response to address the impunity of the killing of the Russian lawyer Sergei Magnistky in prison in 2009 and prepared with a view to achieve objectives set under the Action Plan, and “to change the calculus of human rights perpetrators who believe they can get away with their crimes.” [3]

Yet, unlike the Magnistky Act, which also covers the fight against corruption, the EU’s new sanction regime’s sole focus on serious human rights violations invited many criticisms, and raised a number of questions marks, at least, concerning its applicability.

In this article, I shall initially provide an overview of when, how, and against whom this sanction regime could be invoked, and then, discuss whether it would be realistic for the EU to pursue such an option against Turkey.  

The Council Decision Introducing “The Global Human Rights Sanctions Regime”

As stated in the decision establishing this regime and its information note, the framework of the sanctions regime will be applicable to serious and grave human rights violations including genocide, crime against humanity, torture and other cruel, inhuman or degrading treatment or punishment, slavery, enforced disappearances, extrajudicial and summary executions, arbitrary arrests or detentions, as well as other human rights violations, including but not limited to, trafficking in human beings, human smuggling, sexual and gender-based violence, violations or abuses of assembly and association, of freedom of opinion and expression, and of religion or belief, and a due regard shall be given to EU’s own legislative framework as well as to other international instruments including the United Nations Convention on Economic, Social and Culture Rights, the European Convention for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment, the European Convention on Human Rights, the Convention on the Rights of the Child, and the Convention on the Elimination of All Forms of Discrimination against Women.

As per Article 2 of the decision, irrespective of where they occur- i.e., in their own states, in other states or across borders, natural persons, states, institutions, and non-state actors who commit these violations, or who are either directly responsible for or who provide financial, technical, or material support by planning, ordering, assisting, preparing, facilitating or encouraging such acts could be targeted by sanctions. 

As a response to such serious, widespread, and systematic human rights violations, the regime envisions a number of economic and social sanctions including barring perpetrators from entering into, or transiting through the EU member states, restricting their freedom of movement within the EU, freezing assets of natural persons and/or institutions in the EU, or prohibiting to make EU funds available to these individuals and/or institutions. According to Borrell’s statements, along with these sanctions, some sector-specific restrictions such as suspending the sale of weapons or other equipment could also be imposed in cases like Syria, Libya and Venezuela. This regime also pays particular attention to avoid any direct impact of sanctions on the civilian population.

Finally, Article 5 of the decision requires the Council to take action upon a proposal from the High Representative of the European Union for Foreign Affairs and Security Persons and following the review of the proposed sanctions and reaching a final decision, by unanimity, on the sanction(s) to be applied, the EU will be able to introduce sanctions.

Turkey’s human rights record

When this new regime was adopted, Turkey was one of the first countries hitting into the minds and discussions. Turkey started negotiations for the full membership in 2005; and despite other countries which applied at a much later stage have joined the EU, Turkey is yet to accede to the Union.

While still not a member of the European Union, however, Turkey is one of the founding members of the European Council, albeit with a notorious track record before the Council of Europe bodies, in particular before the European Court of Human Rights and the Committee of Ministers.

Between 1959 and 2019, 3,645 out of 22,535 judgments delivered by the European Court of Human Rights concerned Turkey, and thus making the country the number one addressee of the rulings among 47 members of the Council of Europe.[4] Similarly, between the same dates, with 356 out of 845 decisions finding a violation of the freedom of expression, enshrined under Article 10 of the European Convention on Human Rights, Turkey has become the top violator of this right. In other words, over the last three years, Turkey has single-handedly committed more violations regarding this right than the rest of the remaining 46 members states combined.

According to the 2019 Annual Report of the Committee of Ministers of the Council of Europe[5], as of 2019, Turkey also comes in second among countries failing to implement the Court’s rulings, with 689 judgments out of a total 5.231 decisions, still pending execution by the High Contracting Parties.  

As widely documented in the reports of many international organisations including the Council of Europe Commissioner for Human Rights, Human Rights Watch, Amnesty International, as well as various organisations working on the freedom of press, the recent years witnessed a widespread abuse of criminal laws, and journalists, human rights defenders, civil society organisations and dissenters in Turkey were subject to “judicial harassment” by investigations, prosecutions, pre-trial detention, and imprisonments, all seeking to silence and punish them for their political or professional activities. 

Considering that a wide range of systematic human rights abuses including the violations which were reminiscent of those in the 1990s and occurred during the curfews imposed following the end of the Solution Process and the state of emergency executive decrees adopted after the attempted coup on July 15^th, 2016 wreaking havoc on the democracy, the return of torture, mass dismissals of civil servants, violence and hate speeches against women and LGBT+ community, internet censorship, blunt refusals of lower domestic courts to abide by the rulings of the Constitutional Court of Turkey and of the ECHR, and finally, high ranking state officials and the press encroaching upon the presumption of innocence by publicly stigmatising and scapegoating individuals are yet to be brought to the attention ECHR, it isn’t difficult to imagine how these “statistics” would look like in the coming years.  

While the previous crackdowns were mainly on the Kurds and left-wing figures, it is now expanded on all spectrums of the opposition. With the unravelling of rule of law and judicial independence in Turkey, all these actions “pursued the predominant ulterior purpose of stifling pluralism and limiting freedom of political debate” and “it is not only the rights and freedoms of an individual that could be said to be under threat but the whole democratic system itself”, as noted in ECHR’s decision in the case of Selahattin Demirtaş. [6]

 Odds of success of the sanction regime and the likelihood of its application against Turkey

The above summarised current grim picture is also a manifestation of all conditions required to invoke a sanction against Turkey have been met. Yet, these violations and criticisms are, unfortunately, not merely confined to Turkey. As a result of the increasing “hostility to democracy” in a number of countries such as Russia, Hungary, Poland, and Azerbaijan, all members of the Council of Europe, and some even full EU members, the Council of Europe developed new sanction mechanisms in an attempt to protect itself and safeguard its human rights system. One of these measures is the infringement procedure established under Article 46/4 of the European Convention on Human Rights against recalcitrant High Contracting Parties refusing to abide by the Court’s judgments.

As per this provision, if a High Contracting Party refuses to abide by a final judgment of the European Court of Human Rights, the Committee of Ministers may refer this matter before the Court by a decision adopted by a majority vote of two-thirds of the representatives entitled to sit on the Committee. Since a full and swift execution of the judgments delivered by ECHR is of a paramount importance, the key rationales behind this provision include preventing the lodging of fresh or recurring applications against the non-compliant respondent state, strengthening the position of the Committee of Minister in its task to maintain the credibility and efficiency of the Convention system, and securing the execution of the judgments by exerting political influence on the non-complaint state. To this end, a number of sanctions ranging from the suspension of voting rights to the expulsion from the Council were designated among possible sanctions.

To date, however, this infringement procedure was only launched against Azerbaijan, and the Committee of Ministers later agreed to close, without imposing any sanctions, after Azerbaijan implemented the ruling. 

Turkey’s persistent failure in complying with the ECHR’s judgment in the case of Kavala v. Turkey, on the other hand, led the Council of Ministers to adopt a sharply worded resolution at its meeting held between 1-3 December 2020. The Council has, once again, strongly urged Turkey to assure Mr. Kavala’s immediate release.[7] However, despite this acerbic resolution, the Constitutional Court of Turkey postponed its review of Mr. Kavala’s application for a second time, and the local trial court announced its decision to extend the pre-trial detention of Osman Kavala at the first hearing held after the Constitutional Court’s decision. Thus, Turkish authorities reasserted its flat-out rejection to comply with the decisions of the Council bodies.

Moreover, while bracing for the European Court of Human Rights’ Grand Chamber decision in the case of Selahattin Demirtaş, which was scheduled to be announced on December 22^nd, 2020, the President Erdoğan avowed “(…) if there is any such right, we’re not going to be defending it. I believe our judiciary wouldn’t confer any such right to a terrorist like Selahattin Demirtaş”, thereby suggesting that the concerns regarding the likelihood of a similar failure in the execution of the ECHR’s decision were far from being unwarranted.  

In principle, Turkey’s failure in abiding by the ECHR’s judgments in the cases of Kavala and Demirtaş may trigger both the infringement procedure and the application of the new sanction regime. However, given the EU’s persistent failure in sending a clear message to Turkey, particularly because of the concerns relating to the ongoing cooperation agenda on refugees, such a scenario doesn’t appear to be realistic.

Indeed, speaking to the Euronews, Joseph Borrell, the founding father of the new sanction regime, pointed to the lack of significant improvement in Turkey’s relations with the European Union; adding, along with those pressing for real action, there are also member states who still remain reluctant about imposing sanctions on Turkey.[8]

Following the adoption of this new mechanism, the Luxembourg Foreign Minister Jean Asselborn and the Austrian Foreign Ministers Alexander Schallenberg publicly announced that the new framework could be considered a warning to Turkey, and both demanded the EU to take more concrete decisions using a very clear language.[9] Despite these statements, however, at the EU’s leaders’ summit on 10-11 December 2020, proposals for wider sanctions or an arms embargo were rejected, and the leaders only agreed on imposing gradual sanctions targeting individuals and companies involved in Turkey’s gas drilling in the Eastern Mediterranean. [10]

In light of these developments, one can assuredly speak of a certain degree of reluctance about Turkey. Moreover, it is still unclear whether these sanctions would work in practice or yield tangible outcomes. Considering that triggering the infringement procedure under Article 46/4 of the European Convention on Human Rights requires a decision to be adopted by a majority vote of two-thirds of the representatives in the Committee of Ministers and that there are many other countries committing human rights violations, and given the political nature of persons/bodies entitled to adopt such decisions, it isn’t difficult to see that with the states dreading that their own turn might come next, achieving this higher quorum would be very unlikely. Furthermore, reaching the unanimity required in the EU Global Human Rights Sanctions Regime would, undoubtedly, be even a daunting challenge.

Currently, there is also no consensus among scholars on the effectiveness of international sanctions. Some academics even argue that it would be remiss of a state not to avoid the risk of sullying its own reputation in the international fora by committing human rights violations, that it would eventually execute judgments, and sanctions will only be ineffective, if not counterproductive, against a state which obstinately refuses to follow court orders despite all warnings and actively resists to any change.

In addition, given the high number of states “perpetrating human rights violations”, the target country would inevitably raise the uncomfortable question: “But why me?” Thus, in the framework of a mechanism requiring unanimity for adopting decisions, at a certain point, it will be almost impossible for the states voting against each other.  

Notwithstanding these concerns, as we all vividly remember from the Council of Europe’s experience with Russia, triggering sanction mechanisms would also result the target country doing nothing, or even thundering threats to withdraw from the membership or withhold the payment of the obligatory contributions to the annual budget. Although sanctions are purportedly designed in a manner to avoid any direct impact on the civilians, they could lead the targeted countries to abandon or become estranged from the institutions, and thus merely depriving its citizens suffering from serious rights violations from the only available remedy to pursue the justice and further compounding their isolation.

With the twin advances of authoritarianism and populism across the world, international organisations unfortunately fall short of formulating swift and effective responses proportionate to the gravity of the situation. More often than not, selective and exclusive campaigns which are limited to the “deserving/acceptable” or “very important” individuals don’t only ignore, or even obscure, the plight of other victims; but also, are unable to exceed beyond “raising concerns”, and remain ineffective in the face of unprecedented waves of state oppression. We shall therefore wait and see whether the European Union will continue to “follow the developments with deep concern” or choose to effectively implement this new sanction regime whose main goal was proclaimed as to “stop perpetrators believing they can get away with their crimes.”