Transnational Advocacy Networks, International Linkages, and the ICA Norm

The first factor used to explain the increase in domestic human rights trials is the role of transnational advocacy networks (TANs)—“committed and knowledgeable actors who work on specialized issues and promote causes and principled ideas and norms,” such as international and domestic NGOs (Diamond Reference Diamond1995; Keck and Sikkink, Reference Keck and Sikkink1998: 8–9; Carothers Reference Carothers1999; Risse, Ropp, and Sikkink Reference Risse, Ropp and Sikkink1999). These groups serve to “‘amplify’ the demands of domestic groups, pry open space for new issues, and then echo these demands back into the domestic arena”—a process called “the boomerang effect,” most common in human rights campaigns (Keck and Sikkink 1999, 99). Other literature has pointed to similar dynamics, emphasizing the role of additional forms of international linkage, that can create pressure on authoritarian regimes and hook states into the larger processes of the boomerang effect, which are beyond their control (Levitsky and Way Reference Levitsky and Way2006, 382; Reference Levitsky and Way2010).

In a series of landmark works, Kathryn Sikkink builds on the TANs/linkages literature and develops a comprehensive theory about the increasing frequency and impact of domestic, international, and foreign human rights trials in relation to international normative change (Lutz and Sikkink Reference Lutz and Sikkink2001; Sikkink Reference Sikkink2011). This normative change (which has occurred through TANs) represents a shift in conceptions of justice for human rights abuses from sole emphasis on state responsibility to a growing emphasis on individual criminal accountability (ICA) (Lutz and Sikkink Reference Lutz and Sikkink2001; Sikkink Reference Sikkink2011). Through networks, normative ideas are spread and collective action is facilitated between the domestic, international, and foreign levels. This has allowed for the diffusion of the ICA norm.Footnote ¹³

More recent studies of this phenomenon, which Sikkinnk calls the “justice cascade,” use large-N data analysis to test the impact of trials (Sikkink and Booth Walling 2007; Kim and Sikkink 2010, 96; Olsen, Payne, and Reiter Reference Olsen, Payne and Reiter2010; Sikkink and Kim Reference Sikkink and Kim2013). The assumption that human rights trials follow democratic transition is strong in this literature as well (Sikkink and Booth Walling 2007; Kim and Sikkink 2010, 96; Olsen, Payne, and Reiter Reference Olsen, Payne and Reiter2010; Sikkink and Kim Reference Sikkink and Kim2013), consistent with the previous scholarship (see Carothers Reference Carothers2002, 7). The frequent usage of the term “after transition” projects an image of an unambiguous process of democratization. In sum, this literature points to normative change at the international level to explain the presence of human rights trials domestically, and continues to frame trials as a function of movement toward democracy.

Private Prosecution

A third causal mechanism identified in the literature conducive to human rights trials is the right to private prosecution (Michel and Sikkink Reference Michel and Sikkink2013). Private prosecution occurs in countries that provide victims and NGOs the ability to advocate for victims' rights actively throughout court proceedings—mirroring public prosecutor advocacy of the state. This right was a major driving force in Latin American human rights trials of military officials, especially in Chile and Argentina, which have experienced a comparatively high number of prosecutions for human rights crimes (Michel and Sikkink Reference Michel and Sikkink2013). Michel and Sikkink demonstrate that this right was a key causal mechanism for two reasons: it has been used to introduce new arguments regarding international and regional human rights law, which were eventually relied on in Supreme Court decisions (2013, 898); and second, private prosecution allowed victims, and NGOs representing them, to keep court cases open, even in the absence of political will to examine accusations against state actors (889). The authors argue that private prosecution is fundamental because it provides a mechanism through which civil society actors can use the law to advocate for victims' rights.

Judicial Independence

Increases in judicial independence have also been linked to the opening of human rights trials. Skaar (Reference Skaar2007, Reference Skaar2011) has argued that the extent of domestic trials in a given country is directly related to the level of independence of the judiciary from the executive branch, in particular from the president. In her study comparing Uruguay with Argentina and Chile (2007), Skaar contends that lack of judicial reform strengthening the judiciary in relation to the executive means that judges are strongly influenced by the power of executive actors over their professional destiny, and unlikely to challenge the military's version of events through prosecutions. Judicial reform resulting in greater independence of judges can facilitate human rights trials as it increases protections for judicial actors interested in pursuing prosecutions based on victims' complaints against state actors.

Legal Mobilization

Legal mobilization, first introduced by Zemans (Reference Zemans1983), has also been noted as an important contributing factor in the establishment of human rights trials. Legal mobilization is the notion that when victims have access to a variety of legal resources, they are able to advocate for and establish their rights as citizens through legal means (see also Burstein Reference Burstein1991; Epp Reference Epp1996; McAdam, Tarrow, and Tilly 2001; McCarthy and Zald Reference McCarthy and Zald1977). Legal mobilization occurs when “civil society activists, with professional help from legal specialists, mobilize law on behalf of disadvantaged citizens and challenge discriminatory practices” (Tezcür Reference Tezcür2009, 213; on the MENA region, see also Moustafa Reference Moustafa2003, Reference Moustafa2007; El-Ghobashy Reference El‐Ghobashy2008). Legal mobilization has played an important role in the facilitation of domestic trials in Latin America (Michel and Sikkink Reference Michel and Sikkink2013), and in Turkey (Tezcür Reference Tezcür2009).

Current Explanations of Human Rights Trials and the Turkish Case

The current literature explaining the presence of human rights trials is a useful starting point for analysis of the Turkish case. There is no doubt that the role played by TANs has been important in Turkey in helping to establish international and domestic legal mobilization. Turkey has high levels of linkage (including through local NGOs), with democratizing pressure from Western governments and multilateral institutions slightly mitigated by the country's strong economy and geostrategic military position, particularly in the post-Arab uprising period (Levitsky and Way Reference Levitsky and Way2006, 388). These two literatures are pertinent to the Turkish case because of the important role played by direct linkage to the Council of Europe, and more broadly the European Union, through Turkish citizens' recourse to the European Court of Human Rights (ECtHR) (Alpkaya et al. Reference Alpkaya, Altıntaş, Sevdiren and Sevimli2013, 108). As a member of the Council of Europe since 1949, Turkish citizens have had the right to petition the ECtHR since the adoption of the European Convention on Human Rights (1953).

The ECtHR has served as an extensive and effective international venue that has revealed the extent of human rights abuses in Turkey, and allowed particularly for the review of violations carried out in the southeastern region of the country. The international linkage with the court, in conjunction with the (albeit uneven) EU accession process, explains the increasing pressure on the Turkish government to address these crimes in ways that contribute to judicial and legal reform (on which accession progress is largely based). Yet, neither these linkages, nor the ongoing work by transnational advocacy networks, can explain the timing of the boomerang, in which domestic cases began to be opened in 2008. Data from my interviews indicate that there is strong support for the ICA norm among the population affected by these crimes. However, it has likely been present among relatives, human rights activists and legal professionals since the mid 1990s (the height of abuses), when complaints were first logged in Turkey's domestic courts. These explanatory variables had been active for decades in Turkey before the emergence of domestic trials for human rights violations against Kurds in the 1990s.Footnote ¹⁴

Private prosecution (in the form of individual petition rights) can explain the presence of three of the human rights cases discussed here. More specifically, three cases have been brought before the Constitutional Court since a constitutional amendment was passed in 2010 creating citizens' right to individual petition before that court.Footnote ¹⁵ However, individual petition does not apply to other Turkish courts and therefore cannot explain the full wave of trials addressed here. Similarly, judicial independence has played a facilitating role in the Turkish cases but cannot account for the timing of the full set of trials, and changes in judicial dependence on the executive in the last five years are themselves further clarified through the analysis included in this article—based on attention to shifts in distribution of power among elite actors.

Finally, legal mobilization has played an essential role in the opening of human rights trials between 2008 and 2014. The mobilization of the law on behalf of the Kurdish population took place when families filed complaints in the domestic court system starting in 1994. These cases were systematically dismissed in domestic courts for ostensible lack of evidence for indictment, or because of a passed statute of limitations, until as recently as 2008 (Amicus Curiae Brief 2014). This demonstrates the almost ubiquitous view of prosecutors and judges who, in the words of one jurist, “do not view the victims' testimony as reliable evidence, despite its importance in view of the lapse of time since the crimes occurred and [the additional] reality that these offences were committed by state actors and [therefore,] the strong possibility of spoliation of evidence.”Footnote ¹⁶ As domestic legal remedies had been exhausted, human rights associations and domestic legal professionals submitted cases with relatives of the disappeared to the ECtHR.

The impact of these cases should not be underestimated. The ECtHR cases facilitated domestic prosecution in the long term for human rights crimes by providing investigation capacities above and beyond the capabilities of domestic legal professionals (Çali Reference Çali2010). As explained in the amicus curiae brief submitted by a collection of Turkish organizations to the Turkish Constitutional Court in November 2014, the court has found Turkey in violation of the European Convention on Human Rights in a total of 78 percent of the applications (ibid.). In 9 percent, Turkey resolved the cases before a decision was issued through a friendly settlement—indicating “responsibility of the Republic of Turkey is determinable in 87 percent of enforced disappearance cases” (ibid.). Judgments of the court cited violations regarding the right to life, the prohibition on torture, the right not to be arbitrarily detained, and the right to access to domestic remedies. This process of supranational litigation has also had implications for individual criminal accountability because, although the institution determines state responsibility, ECtHR rulings often determine fault of individual military or government officials in the process (although they do not rule on punishments at the individual level).Footnote ¹⁷

The ECtHR proceedings were incredibly valuable in the process of legal mobilization also because the court documented all of its findings, which became available to both the state and civil society actors as well as to families. This created a more complete record of what had occurred in the 1990s, and served as recognition by a credible regional actor of state responsibility. The mobilization of law started at the domestic level and then branched off to also target the supranational level when domestic remedies were systematically exhausted (without trial) on a case-by-case basis between 1994 and 2008. Although this legal mobilization targeting the court enriched the ability of local actors to continue to mobilize domestically, the ECtHR cases do not explain why prosecutors and judges began to be open cases domestically for the first time in 2008.

To summarize, the above discussion demonstrates that domestic legal mobilization, utilizing international linkages through TANs, has been a consistently important element in Turkish sociolegal processes since the 1990s. This work has also been facilitated since the 2010 constitutional amendment through the introduction of private prosecution rights (before the Constitutional Court), and a brief period of increased judicial independence. However, none of these factors on their own, or in combination, can fully explain the set of human rights trials that were opened between 2008 and 2014 in the Turkish domestic legal system. I contend that to explain the timing of these trials one must look to the redistribution of power among elite actors, which ultimately created a window of opportunity for domestic prosecutions to take place in the Turkish legal arena. The next section outlines the details of this argument.

Human Rights Trials

Ergenekon dramatically impacted the work of human rights activists because of the extensive testimony and evidence submitted and heard substantiating individual responsibility for human rights crimes (Avsar, Özdil, and Kirmizidag Reference Avsar, Özdil and Kirmizidag2013). Furthermore, two months after the Ergenekon trial was opened, the first human rights trial, examining crimes carried out by the covert JITEM unit, began in September 2008.

The Ergenekon coup trial was the first time that the wider legal community was exposed to evidence of human rights crimes by security forces from the conflict with the PKK in the 1990s. NGOs worked with families to submit evidence regarding these crimes, although, ultimately, the court decided to strictly focus on crimes against the state, and returned case files to lawyers representing families of victims.Footnote ¹⁹ Activists and families I spoke with saw the Ergenekon trial as a major missed opportunity because, as one individual explained, “there were clear connections between the military and civilian government and human rights crimes committed, and evidence provided.”Footnote ²⁰ However, there was also a widespread sentiment among those interviewed that the Ergenekon trial facilitated the series of subsequent trials that were to begin in 2008, investigating individual criminal responsibility for human rights crimes (see Avsar, Özdil, and Kirmizidag Reference Avsar, Özdil and Kirmizidag2013). Media reports support this idea, indicating that at the end of the Ergenekon trial, over 9,500 files concerning enforced disappearances and extrajudicial killings were distributed to nine different prosecutors (Zaman 2013).

Echoing an interpretation expressed by many of those interviewed, one jurist from a human rights association explained, “the Ergenekon and Balyoz trials triggered the following human rights trials … [by showing] that military members could also be tried.”Footnote ²¹ In contrast to the coup trials, which focused exclusively on crimes against the state, the human rights trials were initiated by civil society litigation based on victim complaints. They have also been low profile in comparison to the coup cases. These trials have been progressively opened since 2008 and, in contrast to the coup trials, more than half of them are ongoing at the time of writing.

These trials are an exceptional example of domestic litigation for human rights abuses in the Middle East North Africa region (MENA), and to my knowledge have not to this point been examined in scholarly work.Footnote ²² To explain this phenomenon, I draw on literature citing power distribution theory—the claim that policy decisions regarding justice are determined mainly by domestic political power switches from previous authoritarian elites to a new government seeking policies to address justice (Zalaquett Reference Zalaquett1992; Pion-Berlin Reference Pion‐Berlin1994; Huyse Reference Huyse1995; Nino Reference Nino1996; Skaar Reference Skaar1999). I move away from the assumptions (inherited from the transitions literature) of a clear transition point, unilateral movement toward democracy, or even a general evolutionary trajectory of democracy over the long term. Furthermore, although the change of power in Turkey brought to the fore new actors (the AKP and their alliance of Islamist elites, particularly with the Gülen movement) who were previously victimized by the TSK, their desire to prosecute the TSK in the coup trials seems to have been motivated by self-interest rather than commitment to human rights norms, as is evidenced by their mounting human rights violations in multiple arenas since gaining power.Footnote ²³

Furthermore, I argue that the trials for human rights abuses were not driven by these elites, as was the case in the coup trials outlined above. Rather, the changes in elite power (clearly demonstrated through the trials of military officials for crimes against the state) called into question the previous status quo assumption of immunity for TSK officials among prosecutors and judges. The political opportunity structure facing lower-level judicial actors shifted, creating a period in which trials, this time driven by ongoing legal mobilization of civil society actors, started to be accepted for indictment and proceedings. Simply put, I suggest that changes in distribution of power between elite actors facilitated opportunities for legal mobilization by civil society to take root, and can explain the timing of these trials. My research indicates that the conflict between the military, old-guard establishment and the AKP identified by Tezcür (Reference Tezcür2009) (see also Turkmen 2008) allowed for the introduction of these indictments and preliminary court proceedings.

The Mechanism—Redistribution of Elite Power

Through my interviews it became apparent that many of the people I spoke with believed the coup trials came about because, in 2007–2008, an alliance that had been consolidating for decades between Islamist factions (AKP and what is known as the Gülen movement) was at its height. The AKP-Gülen alliance combined the power of the executive (held by the AKP) and the extensive networks and authority of the Gülen movement, which at the time had strong support within the judiciary and police forces (Ozbüdun 2015). As one Turkish legal scholar explained, the AKP and Gülen alliance “allowed for greater independence and movement by prosecutors.”Footnote ²⁷ A former military judge with whom I spoke agreed that the alliance facilitated the indictments and initial prosecution stages, since these events “were not achievable only through legal means … cases were opened … because of this unification, and power of the Gülen movement in the judiciary …” added to the strength of the executive.Footnote ²⁸

The AKP and the Gülen movement worked hand in hand through the coup trials to reduce the alliance between the TSK and the judiciary, which had for decades targeted and repressed Islamist political actors, including current members of both groups. In the words of a legal academic working on the impact of the Ergenekon files in human rights prosecutions: “Without the … power conflict between AKP and Gülen versus the old guard tutelage it would not have been possible for human rights activity to break through.”Footnote ²⁹ When political power shifted to the AKP-Gülen alliance these new actors pursued their own political vendettas, targeting the military through the coup trials. In contrast, interview data indicate that the human rights trials were not a case of direct political vengeance where elites in the executive targeted military actors through the judiciary, as seems to be the case in the Balyoz trial and, to some extent, in the Ergenekon trials.Footnote ³⁰

Interviews with relatives also support this theory that the coup trials originated under different circumstances than the human rights prosecutions. Many individuals stated that they had filed complaints (to initiate trials) out of a desire for legal justice and appropriate jail sentences, not vengeance and the death penalty. In the words of the wife of a victim of enforced disappearance, “those responsible should be imprisoned. We are not like them, we don't want them killed.”Footnote ³¹ The daughter of a man forcibly disappeared from the region of Sirnak echoed this sentiment expressed by many relatives: “we don't think like them. We don't want a reprisal, or retaliation … we want prison and an apology.”Footnote ³² These statements reveal the fact that victims' families filing domestic cases perceive a personal interest in upholding the rule of law and adhering to regulations protecting defendants' rights, particularly as a method of differentiating themselves from their aggressors. These quotes represent a theme repeated by additional relatives that lends further support to my interpretation of the difference between these human rights trials and the coup trials. The human rights trials referred to here originated in rights claims and were not initiated through executive investigations (like the coup trials) (Jenkins Reference Jenkins2009, 37).

Interview data from legal professionals and human rights activists indicate that these human rights prosecutions seem to have come about through a lifting of pressure on members of the judiciary (prosecutors and judges) to ignore human rights abuses committed, or to protect military officials from litigation attempts.Footnote ³³ This characterization of the emergence of the trials is further supported by the haphazard timing and location of the trials: proceedings were not initiated all at once as if by a centralized decision, but progressively and with decreasing time between the most recent cases (although no new trials have been initiated since October 2014). As can been seen in Table 1, one trial was initiated each year in 2008, 2009, 2011, and 2012. Five trials were initiated in 2013, and three trials in 2014, indicating a cascade of progressively more trials in the most recent years up until 2014. Additionally, the locations of trial initiation are geographically dispersed around the southeast, with trials initiated in Diyarbakir, Sirnak, Hakkari, Mardin, Ankara, and Mus. It was not until 2013 that a trial was opened for the second time in one of these locations, indicating that different public prosecutors initiated the first four trials.

Redistribution of Power vs. Judicial Independence

In 2010 a landmark constitutional amendment was proposed by the executive and ratified by popular referendum. The amendment enacted a number of changes to the Turkish government, three of which are related to our topic and require us to examine whether the introduction of trials for human rights crimes was actually a result of greater independence of the judiciary from the executive (as Skaar suggests, 2007, 2011), and not a result of the redistribution of elite power. First, the amendment annulled legislation that had previously forbidden prosecution of the leaders of the 1980 military coup (leading the way for the opening of the 1980 coup trial in 2012). Second, the 2010 constitutional amendment created a mechanism by which individuals could, for the first time, petition the highest court in Turkey, the Constitutional Court (Anayasa Mahkemesi). This mechanism serves the purpose pinpointed by Michel and Sikkink (Reference Michel and Sikkink2013), similar to private prosecution in Latin America, because it allows individuals and their lawyers to keep a case open, through review by the Constitutional Court, even in the face of opposition from within the lower levels of the judiciary. This new mechanism is responsible for the three cases that are currently before the Constitutional Court. However, this mechanism is available only for appeal through the Constitutional Court and cannot explain the cascade of trials in the lower domestic courts. Furthermore, to the extent that the proposal of the constitutional amendment of 2010 occurred because of the strength of the Islamist alliance in the executive vis-à-vis the TSK, the right to individually petition before the high court can also be understood as a result of the changing power dynamics within the regime.

Finally, the amendment made changes to the High Council of Judges and Prosecutors (Hâkimler ve Savcılar Yüksek Kurulu, HSYK), temporarily increasing its independence from the executive. Although the executive still participated during this time in the activities of the Council, it had a more symbolic role (Özbudun Reference Özbudun2015, 45). To identify the most convincing explanation for the appearance of human rights trials in this period, a closer examination of the recent series of events is necessary.

Up until 2002, the military had been strong in the executive and judiciary because of its longtime alliance with the Republican old-guard parties. Although there were a few exceptions to this alliance (Belge Reference Belge2006), for the most part it has been strongly in place since the 1980 coup. Civilianization of the government began to occur in 2002 with the coming to power of the AKP through parliamentary elections and through the passage of multiple judicial reform packages in line with the EU accession process since that time. However, the civilianization process was still rather weak before the redistribution of power solidified in 2007–2008. This is clearly demonstrated by the Semdinli case in 2005, in which the judiciary continued to side with the military, maintaining impunity for members of the armed forces (Tezcür Reference Tezcür2009; Saglam Reference Saglam2013).

The power shift that began in 2002 with the legislative elections that brought the AKP to power was strengthened in 2007–2008 by a series of events: Abdullah Gul (a member of the AKP) was elected as president against the publicly stated wishes of the military, the AKP benefited from a second successful parliamentary election (2007), investigations were opened leading to the Ergenekon trial that implicated the military (2007), and the military was unsuccessful in its attempt to close AKP through the courts between March and July 2008. The failed closure case was a resounding victory for the AKP, although, as was reported in the local press, it did lose 50 percent of its state funding) (Güncelleme Reference Güncelleme2008). After these events the executive and judiciary were able to move forward confidently with the Ergenekon trial, actively opposing the military.

The 2010 constitutional amendment strengthened the civilian government's hand by opening the door to legal pursuit of the 1980 coup generals. To this point we see the executive and judiciary working hand in hand against the military, explained by the shift in power favoring the Islamists. Multiple interviewees from a variety of backgrounds within the legal field suggested that more recent conflict between the AKP and Gülen likely contributed to the successful appeal (and eventual dismissal of charges) of the Balyoz trial.Footnote ³⁴ As Kadri Gursel reported in Al-Monitor on April 6, 2015, since December 2013 when family members of high-level AKP officials were accused of extensive corruption, conflict between the AKP and the Gülen movement has gone public, and likely contributed to the recent acquittal in the Balyoz trial.

Although seven of the human rights trials were opened during the period of greater judicial independence from the executive (September 2010–February 2014), the first trial that dealt prominently with human rights abuses was initiated in 2008 (the JITEM case). This case was the culmination of longstanding government-initiated investigations resulting from the Susurluk and Semdinli incidents, which had uncovered information regarding human rights abuses attributed to JITEM. The case itself examined indictments for crimes against the state and the crime of murder of multiple persons, and can be understood as a sort of bridge between the coup trials (dealing exclusively with crimes against the state) and human rights trials (dealing exclusively with crimes against individuals). A second indictment and trial was also opened in 2009, before the increase in judicial independence from the executive. Additionally, since February 2014, the executive has curtailed the independence of the judiciary to a greater extent than even before the constitutional amendment of 2010. However, in this most recent period of high risk for prosecutors and judges, two final trials were nonetheless opened (in June and October 2014).

In sum, judicial independence cannot explain the four trials opened before or after the roughly three years of increased judicial autonomy from the executive, nor the ongoing proceedings (at the time of writing) in nine out of the fifteen trials accepted in lower-level courts at the end of 2015. Judicial independence from the executive seems to have encouraged a phenomenon that had started pre-2010, and that continued after sanctions for this type of judicial activity were again increased in February 2014. Although judicial independence from the executive is part of the story, it cannot account for the set of cases as a whole. Additionally, the Turkish case points to the importance of independence not just from the executive, but independence from the military. The fluctuations in dependence on the executive have been minimal in comparison to the general trend in which the judiciary has become significantly less dependent on the military in the most recent period.

Redistribution of Elite Power: Key to Changing Judicial Independence

Finally, redistribution of elite power should be considered as an important explanatory factor because it also clarifies the complex and changing relations between the judiciary and executive between 2010 and 2014. Before the 2010 constitutional amendment, the Islamist alliance in the executive and judiciary was strong. The AKP could count on its allies in the judiciary as they were working together to prosecute the former coup leaders. Accordingly, in order to move forward with the EU accession negotiations, the AKP government proposed the constitutional amendment, which met certain criteria previously requested through multiple European institutions.Footnote ³⁵ However, when the split between the AKP and Gülen resulted in an open power struggle in December 2013, the AKP quickly moved to regain executive control over the judiciary and police by passing laws that allowed it access to the investigation of corruption in which it was implicated.Footnote ³⁶ By February 2014, the executive had reversed the changes enacted through the constitutional amendment (which had created temporarily greater judicial independence), through Law 6524. Before the Constitutional Court could render a decision on the constitutionality of these executive actions, the AKP-led government also fired the Secretary General, Assistant Secretaries General, the Chairman of the Board of Inspectors and the Vice-Chairmen, Council inspectors, reporting judges, and all administrative personnel of the HSYK (Özbudun Reference Özbudun2015, 47). This constituted a near complete purging of the institution. Although the Constitutional Court subsequently ruled that Law 6524 was unconstitutional, the removal of the HSYK personnel was irreversible since its decisions are not retroactive (Mustafa 2015). This reversal of judicial independence occurred alongside large-scale purging of police officers and reassignment of members of the judiciary suspected to be supportive of the Gülen movement and involved in the corruption investigations.Footnote ³⁷ As noted in a recent report from Human Rights Watch on the situation in Turkey:

In sum, the fluctuations in judicial independence of the judiciary over the last five years are directly related to the power struggle occurring between factions of the Islamist government. Although the brief increase in judicial independence could be called a sign of democratization, when one takes into account the larger set of events that explains institutional changes over this period, it is obvious that these are not democratizing processes. If anything, the last five years have shown how the Turkish government is still strongly swayed by a powerful and controlling executive. At no point can the judiciary be said to have established real independence from the executive, since the AKP-led executive immediately reined in the judiciary when it began to act autonomously.

It is in the midst of this uncertain and changing political environment that the political opportunity structure available to prosecutors and judges changed because of what had been demonstrated in the coup trials. The status quo of military impunity for human rights crimes (and retribution against judicial actors participating in the cases targeting them) that had been reaffirmed in the 2005 Semdinli case was rendered uncertain as a new set of actors gained power that substantially displacing the former strength of the military.Footnote ³⁸

Finally, it should be noted that, on its own, the redistribution of power is not enough to explain the emergence of domestic prosecutions starting in 2008 because it does not consider what brought litigation to the domestic courts in the first place. Without the tireless efforts of activists and the legal community connecting victims' families to legal resources, these trials would never have been initiated.

In summary, my field research refutes the claim that the human rights trials occurring in Turkey today are simply some sort of political revenge between competing clans. Legal experts from a variety of professional positions, some of whom participated in the trials, confirmed that although there were personal political feuds between the AKP/Gülen and the TSK (which were manifest in the coup trials), the men indicted in these human rights trials were those individuals who had carried out the worst human rights crimes of the 1990s. As stated by one interviewee with intimate knowledge of the trial proceedings, “it was no longer possible [for the military and old guard] to protect them.”Footnote ³⁹

As detailed above, interviews with human rights activists and legal professionals indicated support for the idea that the conflict between the TSK and the AKP facilitated the introduction of domestic prosecutions. Many of the human rights activists and legal professionals interviewed offered this idea as a critical factor for the opening of trials. When individuals disagreed with this analysis, they argued that the advancements in human rights should solely be attributed to the human rights movement of which they are a part.Footnote ⁴⁰

Implications of the Human Rights Trials in Turkey

One weakness of the human rights paradigm is that it often simplifies political phenomena into a dichotomous characterization of good or bad, progress toward democracy or authoritarian regress. What can we take away from this story that recounts human rights trials during the continuation of widespread human rights abuses? First, the Turkish case indicates the need to make a distinction between the types of trials that are often associated with transitional justice. There are at least two categories: coup trials, which target former leaders and often are predicated on the idea of crimes against the state or the rule of law, and trials involving individual accountability for human rights crimes (see Shamir Reference Shamir1990). Although both sets of cases involve “transitional justice” (to the extent that they are dealing with crimes of the past), they are different in quality and impact. The coup trials exhibited elements similar to show trials (high publicity, targeting former rulers, government initiated), while the human rights trials have not. Furthermore, although the coup trials revealed detailed accounts of human rights abuses, those crimes were set aside by the court in favor of a focus on crimes against the state. On the other hand, the human rights trials are a series of seemingly unrelated indictments, from which individual prosecutors decided to initiate investigation and court proceedings. They have, like the coup trials, provided venues for evidence that runs counter to the state narrative that was (unlike the coup trials) subsequently included in court proceedings.

To the extent that these human rights trials have continued to weather further shifts in power distribution, they can also be differentiated from the coup trials as more resilient and may have longer-lasting legacies, despite their more discrete nature. These trials are similar to the series of trials that have been documented in other cases, such as Argentina, Chile, Guatemala, Peru, and Paraguay. The human rights trials in these countries were also initiated by victims. They were drawn-out affairs accompanied by great uncertainty about the eventual outcome (Sikkink Reference Sikkink2011, 266; Lessa Reference Lessa2013).

A realistic appraisal of the court proceedings necessitates the recognition that the cascade of human rights trials could be closing down. One case was definitively closed with the acquittal of the main defendant (Musa Çitil) by the Supreme Court of Appeals in May 22, 2015 (also known as the Court of Cassation, the Yargitay) (Faili Belli 2016). Five additional trials have recently led to acquittals by lower courts after multiple hearings, at least two of which are moving toward appeal before the Yargitay. According to one of the human rights organizations familiar with these cases, these two trials are likely to end in acquittals of the main defendants as well (Jemal Temizöz and Mete Sayar).Footnote ⁴¹ At the time of writing, there are nine cases still pending.

It is also worth noting that the general sentiment among those interviewed was that trials have so far been unsuccessful. Many human rights activists, legal professionals, and relatives were optimistic when indictments were first issued but expressed disappointment with what they perceive as their minimal concrete outcomes.Footnote ⁴² As one man, whose father, brother, and cousins were forcibly disappeared, explained, “these [trials] are only formality—none of them have concluded [or] led to a proper resolution. None of them ease the peace process or the families' pain.”Footnote ⁴³ This perspective was widespread among relatives and even some human rights activists, demonstrating that at the micro level, these trials have felt very inadequate.

There are two important points in response to these observations. First, had power dynamics not shifted again (ending the alliance between the Gülen movement and the AKP, and reintroducing the military's utility in relation to the ongoing Syrian civil war on Turkey's border), the human rights trials very well could have continued in a more robust fashion, perhaps resulting in convictions.Footnote ⁴⁴ Second, when looking at the trials as a series of similar phenomena, and thanks to the documentation by NGOs active in the cases, it becomes apparent that some substantial progress has occurred through the domestic trials, particularly in terms of hegemonic narrative contestation.

Recent scholarship has recognized the relationship between counternarratives and transitional justice, particularly because of the use of memory as a political tool, which serves as “an integral and central component of the practices and policies regarding the past” (Jelin Reference Jelin2007, 139, 156; Barahona de Brito, Gonzalez-Enriquez, and Aguilar 2001; Lessa Reference Lessa2013; see also Osiel Reference Osiel1986). The interplay of competing narratives among different societal and state actors has been highlighted as an important element in the processes of historical reckoning with crimes carried out by former military regimes in Latin America (Lessa 2013). In short, the state and social actors compete to define the way violent episodes are understood by the larger national community. The state's version is embedded in institutions and therefore dominant, but the counternarratives promoted by socially marginalized actors can at times “overtly dispute hegemonic (official) perspectives” (Lessa 2013, 21). Despite the fact that these trials have so far been legally unsuccessful, they should not be discounted because they introduced counternarrative into state venues, through judicial institutions, in the form of legally recognized testimony. This is a step forward in terms of narrative contestation.

Perhaps the most promising cases are those before the Constitutional Court (which has since 2013 upheld a number of rights claims against the AKP government). This is particularly important as the Constitutional Court continues to be one of the only government institutions willing to habitually and directly counter the executive (Özbudun Reference Özbudun2015, 53).Footnote ⁴⁵ Although activists and lawyers were for the most part pessimistic about the drawn-out nature of the ongoing domestic trials,Footnote ⁴⁶ multiple individuals expressed hope and optimism about the possibility that the Constitutional Court would rule in favor of human rights in the three cases it is currently examining.Footnote ⁴⁷ These cases are particularly important because of the question that the high court must answer: whether the crimes under scrutiny (enforced disappearance and extrajudicial killings) should be considered human rights abuses, and therefore ineligible for the statute of limitations. This question centers on the contestation of narrative in which the state and military define the events of the 1990s as a patriotic fight against an insurgency, versus activists and victims, who consider the crimes to amount to state terrorism, emphasizing the rights of victims and their families. The Constitutional Court's decision on the three cases that are currently before it will likely legitimize one of these narratives.

The findings presented in this article indicate that in contexts of conflicted democracy, or even democratic stagnation, where political elites are not adopting human-rights-respecting behavior, trials for human rights crimes can occur and affect the ongoing struggle for justice by introducing counternarratives into public venues and institutional spaces. This was not achieved in the international cases seen at the ECtHR (Çali Reference Çali2010, 332). This counternarrative should not be underestimated. The fact that multiple trials have, upon request from defendants' lawyers, been moved to locations far from the scene of the crime and often to areas with strong traditional republican support of the military, indicates that the military officials being targeted are worried about the social effects of that counternarrative.Footnote ⁴⁸ Recent research on Turkey indicates that the “presence of social and political crises” can enable mobilization of judicial actors in “off-bench” political activities (Bakinar 2016, 142). The findings presented here support the extension of this claim, that moments of political uncertainty can also lead to important judicial activity connected to larger political questions such as responsibility for rights violations.

Finally, my findings add further support to the claim that the coup trials facilitated the human rights trials (Avsar, Özdil, and Kirmizidag Reference Avsar, Özdil and Kirmizidag2013, 10). This indicates that in conflicted democracies or contexts of democratic deterioration such as Turkey, events that begin as political rivalry can at times facilitate more legitimate (less politicized) types of litigation, even targeting physical integrity rights violations.Footnote ⁴⁹ By challenging the narrative that military action is consistently for the good of the state, these trials created an initial venue for evidence to be displayed regarding military impunity and human rights crimes (i.e., the JITEM and Ergenekon cases). The human rights prosecutions were able to pick up where the coup trials left off, and contributed to the counterdiscourse, arguing not just that the military had at times targeted the state, but that it had systematically violated human rights. These trials were an unintended consequence of the uncertainty created by elite competition as grassroots actors took advantage of opportunities generated by political rivalries.