CHILDRENS RIGHTS IN TURKISH KURDISTAN: STATE OF PLAY AND POLICY RECOMMENDATIONS FOR NATIONAL AND EUROPEAN GOVERNMENTS AND INGO'S

Legal Framework

UN Conventions

Having ratified the CRC on 4 April 1995, the Turkish government has an obliga­tion to protect children living in Turkey, regardless of their ethnicity, religion, or sex. However, at the time of ratification Turkey stated that it reserved the right to interpret and apply the provisions of a number of articles of the CRC, ‘according to the letter and the spirit of the Constitution of the Republic of Turkey and those of the Treaty of Lausanne’, which constricts the officially recognised minorities in Turkey to non-muslims. The relevant articles are: Article 17, covering a child’s right to have access to information and materials from a diverse source of national and international mass media; Article 29, which provides for a child’s right to education that encourages cultural respect and diversity; and Article 30, which covers a child’s right to participate in his or her culture, language and religion.

After ratification, Turkey was required to submit an implementation report within two years. Upon receipt of this report in 1999, the working group of the Committee on the Rights of the Child requested further information on a number of specific concerns regard­ing the implementation of the CRC. Turkey was required to submit a second peri­odic report by 2 May 2002 and a third by 3 May 2007. However, it has yet to submit either of these reports.

On 8 June 2001, after reviewing reports from leading human rights NGOs and in­formation provided by the Turkish government, the Committee emphasised the following issues:

1) The potential negative impact of Turkey’s ‘reservations’ on the rights of children not recognised under the Treaty of Lausanne, particularly Kurdish children;

2) Discrepancies between the law and practice of legal review, particularly with regard to the pre-trial detention of children;

3) The need for Turkey to develop stronger programmes to ensure the economic and social protection of children in the most vulnerable circumstance, including those in south-eastern Turkey;

4) Regional and socio-economic disparities and their grave consequences on the devel­opment of children, particularly in the Southeast;

5) Concerns regarding the number of displaced Kurdish children and their lack of sub­stantial housing, health services and education;

6) The finding that a significant number of children working or living on the streets are mainly reliant on NGO assistance, with most not receiving government aid.

There are two additional protocols to the CRC. The first is entitled the Optional Protocol to the Convention on the Rights of the Child on the Involvement of Children in Armed Conflicts. This was ratified by Turkey in June 2004. The second is the Optional Protocol to the Convention on the Rights of the Child on the Sale of Children, Child Prostitution and Child Pornography, which was ratified by Turkey in 2002. Turkey is also party to the Protocol to Prevent, Suppress and Punish Traficking Persons, Especially Women and Children, supplementing the UN Convention against Transnational Organised Crime.

The European Convention on Human Rights and Fundamental Freedoms

Turkey ratified the ECHR in 1954, in addition to Protocol 1, which enshrines the right to protection of property, to education and to free elections. In 2004, Turkey ratified Protocol 13, which prohibits the death penalty in all circumstances, includ­ing in times or war and at times of danger of war. In October 2006, Turkey ratified Protocol No. 14, amending the control system of the ECHR.

Significantly, the majority of cases establishing violations of the ECHR and its Pro­tocols by the Turkish government have related to events in the Kurdish region of south-eastern Turkey.

The European Social Charter

The European Social Charter (ESC) was adopted to complement the ECHR. It provides further protection from discrimination and the protection of the social wellbeing of European citizens. This treaty in particular secures the protection of children’s rights.

Turkey ratified the ESC on 24 November 1989. On 26 June 2007 it ratified the Re­vised Social Charter, accepting 91 of its 98 paragraphs. However, Turkey has nei­ther signed nor ratified Protocol 3, which provides for a system of collective com­plaints.

Further, Turkey has not signed the Council of Europe Framework Convention for the Protection of National Minorities, or the European Charter for Regional or Mi­nority Languages.

Political Framework: children's rights and the accession process

When States and international instutions commit themselves to respect and promote children's rights, this entails not only to their internal but only to their external action. Thus, the European Union should pressure Turkey to respect and implement children's rights within the accession process and consequently see to it that the Instrument for Pre-Accession Assistance also benefits the most disadvantaged children in south-east Turkey.

In spite of efforts such as singing the ICRC, children's rights policies and especially implementation remains weak in Turkey. Much of the problems have to do with lack of budget resources and the lack of political consensus to grant rights to minorities. Despite the fact that 38% of the Turkish population consists of minors, in 2008, the Turkish government spend 3% of their Gross Domestic Product (GDP) on social services, benefits, education and health services for children, while in the same year, 2.17% of the GDP was spent on the military.

However, Turkey has the obligation to improve its children's rights and children's welfare policy as part of the accession process. In the Commission's Communication 'Enlargement Strategy and main Challenges 2009-2010', the Commission states:

“Efforts need to be stepped up in all area's relating to children's rights, including administrative capacity, health, education, the juvenile justice system and child labour. Cases of juveniles tried as adults under the anti-terror law, and facing disproportionate sentences raises serious concern.”

In the Commission Communication 'Towards a Strategy for on the Rights of the Child', the Commission stressed that 'The enlargement process is another powerfull tool for providing opportunities to promote children's rights'. The Commission further elaborated on this point in its Communication 'A special place for children in EU external action'. According to the Commission, amongst others, following groups of children are particularly vulnerable:

• children beloning to ethnic or other minorities
• displaced children
• children affected by armed conflicts

Unfortunately, almost all of the Kurdish children in Turkey can be categorized in one or more of these groups.

Poverty and Underdevelopment

The southeastern region of Turkey is heavily underdeveloped. 60% of the population is living in poverty and the socieconomic gap with the rest of the country is alarming. The most developed regions of Turkey, the Marmara and Aegean region, have HDI values (average 0,760) above the national average. Whereas the least developed regions Southeastern and Eastern Anatolia HDI levels (average 0,6) lags behind the national average by 0,128. In short, borrowing from a World Bank (2001) report, “the level of economic development declines from west to east, such that while the west broadly resembles a West European industrial economy, the east is still in many respects akin to a developing economy”.

Underdevelopment and poverty have a very negative effect on the lives of Kurdish children. For example, the children under 5 mortality rate per 1000 live births is 49% in the East, while it is only 30% in the West of Turkey according to Unicef. For internally displaced Kurdish children, the number goes up to 58%.

The poverty problem in East Turkey stems from a long historical and political process. The armed conflict had devastating effects on the region. The cities are overcrowded with forced migrants from the villages, who have lost their livelihoods and have to adapt and survive in an urban context. Rural area's are marked by underinvestment, village guard system and bans on pastures who make it very difficult to make a living out of agriculture.

As a result of this poverty, a lot of children are working and not attending school. Working children are under big risks and almost all of them work under very unhealthy conditions. According to a recent ILO study Turkey ranks fourth after Bangladesh, Senegal and Nigeria among countries which use child labor. According to a study by the Ministry of Labor 56 % of the children in the labor force come from a family who have migrated from rural to urban areas.

While some governments initiatives have been put in place to tackle child labour, with the support of the EU, it is clear that only a sustainable development policy can eradicate the roots of child labour. Such development policies have to take into consideration the historical and political context of the region, adress the results of the armed conflict such as forced migration and consult with the local population and civil society. At this moment, the development intitiatives in the region are unsatisfactory in these perspectives. Also, a big portion of public spending goes to energy production and defence and security measures, which are both not beneficial to the local population and children and do not provide for the so needed job opportunities.

Recommendations:

• A portion of the income derived from the Kurdish' region's natural resources ( water, energy, mines, oil, etc) should be spent for regional development and meeting the basic needs of the most deprived children and families.
• The European Charter of Local Self-government should be ratified to open the way to administrative and financial autonomy.
• Special efforts should be spent for the transfer of the EU structural adjustment funds to the region, i.e. positive discrimination should be applied.
• Investments in the region must bring jobs with them that are accesible also for low-skilled migrants and women.

Forced migration, Internally Displaced Persons and children's rights

More than one million people were internally displaced from Turkey’s southeastern provinces during 1984-1999, a period of fighting between the PKK and military and security forces of Turkey. Most of the refugees settled in the closest cities, others migrated to cities in Western Turkey.

Some small-scale studies demonstrated that women and children are more likely to suffer from the results of the displacement with regard to their health, social, economic conditions. The European Commission (EC) describes the current situation of internally displaced persons as “still critical", noting that large numbers of IDPs live in "extremely poor conditions" on the periphery of cities and larger villages.

Sociological research shows that Internally Displaced Children are less likely to attend primary school than non-displaced Turkish children (78, 6% against 88,8%). IDPs suffer from less vaccination, less nutrition, acute respiratory infection, fever, and less antenatal care compared to overall population.

It was only in the 2000s that the government started developing tangible policies for addressing the plight of the displaced. Several initiatives taking shape since the 1990s served as catalysts in this outcome. Meanwhile, Turkey’s 1987 application for candidacy to European Union (EU) membership was accepted in 1999. The EU made Turkey’s accession conditional to its fulfillment of a number of political criteria, including addressing the plight of the displaced Kurdish population. As a result of these developments, the government made several commitments to the EU in the “Turkish National Programme for the Adoption of the Acquis.” These commitments to the EU also led to United Nations’ (UN) involvement in the development of policies and programs targeting the displaced in Turkey.

European Commission’s Regular Report on Turkey’s progress toward accession to

European Union nevertheless observed that the programme for the “return to villages” proceeds at a very slow pace and serious efforts are needed to address the problems of IDPs. In July 2004, the Law on Compensation for Damage Arising from Terror and Combating Terror was ratified by Turkish Grand National Assembly and the Regulation determining the application procedures and principles of this law was accepted and put into force by the Council of Ministers. The law aims to cover the material damages of real or juristic person(s) who have migrated or displaced due to terror or anti-terror acts. Outstanding obstacles to sustainable re-turn include the upsurge in violence be-tween the Turkish army and Kurdish militants since 2004 in south-eastern provinces, the continuing presence of around 69,000 village guards and close to a million landmines in provinces border-ing Syria and Iraq, and the under-development of the region. In May 2007, the government in-troduced a new law according to which governors may increase the number of village guards in their provinces.

It should also be noted that, although to a lesser extent, the Kurdish government is holding on to their policy of forced evictions on the Kurdish regions, notably by damn-building as part of the GAP project. For exemple, the much contested plan of building the Illisu Dam in the Hasankeyf region (near Batman) is clamied to cause the flooding of 183 villages and hamlets.

Recommendations:

• The problems IDP's and forced migration and the Kurdish conflict are overlapping in most area's. Therefore any solution or government policy should recognize the armed conflict as one of the main reasons for migration and consequent social and economical problems. Moreover, the effectiveness of the said projects depends on the projects themselves being products of democratic processes based on the active participation of relevant non-governmental organizations (“NGOs”) and of representatives of internally displaced persons (“IDPs”).
• For the migrants who do not choose to return, the central government has to step up his efforts to garantuee the basic rights of children: housing, healthcare, education, food and a safe place to live

Education

Like with development, the educational system in the southeast region suffers from centralised, nationalist policies and insufficient investment, leading to another important divide with the rest of the country.

Several factors influence the school participation and educational achievements of Kurdish children in a negative way. Reports mention poor infrastructure, overcrowded classes and badly trained or unmotivated teachers in some cases. According to Turkey’s Ministry of National Education (MNE), enrollment rates at the pre-primary and primary levels in the state school system are higher in western versus eastern regions. Western regions enjoy a lower pupil-teacher ratio¹, and generally outperform eastern regions on international and national examinations. Researchers found that the teacher-pupil ratio is an estimated at 33:1 in Eastern and Southeastern Anatolia and 25:1 for the western part of the country.

Despite some progress (obligatory and free schooling was introduced to Turkey as recently as 1997 under Law No. 4306), various institutions have pointed to the lack of material and human resources involved in the delivery of educational services. Although the local Municipalities are given legal obligation to carry out services for children, disabled people and women, they are not provided resources for these services.

Bad economical situations causes families to engage in seasonary migration and bring their children along. Seasonal work coincides with the schoolyear, which results in school drop-outs. Some parents can not cover the costs related to school, such as books, pens, bus money etc.

The government, through the governorships, offers a Conditional Cash Tranfer to needy students which has some positive effect on the school participation of Kurdish children. However, critics point out that the amount is very low and the method of identifiying students and payments can be a humiliating experience for children, because they have to indicate wether their family needs financial assistance in the classroom during school hours. Studies have showed that only 9,7% of families are receiving the payments.

In the rural area's, a lot of villages do not have their own school. Regional Boarding Schools and bussing programs were established for children who live far away from school and for children whose parents are not able to afford their schooling financially. All expenses are paid for by the government. Allthough it is worth mentioning that the Turkish government is making a great effort to ensure education for all children, a lot of Kurdish people who enjoyed their education in a RBS testify of traumatic experiences, being pulled away from their family in a strange, Turkish speaking environment. Recently, news about sexual abuse in RBS shocked the country.

The principle of “national unity” manifests itself in educational policy in two ways, both of which hinder success within the state school system of Kurdish students. First, the Kurdish language is flatly rejected as a medium of instruction or subject of study. Second, the existence of Kurdish identity is purposefully ignored in school settings, and positive references to Kurds in the national curriculum at the primary level are non-existent.

The use of mother tongue in education is a human right and has been an important demand from the Kurdish community for a very long time. Implementation of the Kurdish language will not only improve the educational achievements of Kurdish speaking children, it will also bring a positive contribution to the solution of the Kurdish issue and is a 'sine qua non' for the preservation and development of the Kurdish language.

Children of IDP's, as allready mentioned, are especially vulnerably to restricted educational acces. There are various interconnected reasons why internally displaced children do not have

access to educational opportunities. The first of these is that at the beginning of the 1990s, right before people were displaced, many rural schools in the region were already closed due to the armed conflict. Therefore, some children were already not attending school at the time that they were forced to migrate. Second, because the livelihood conditions of families worsened after displacement, many of them could not send their children to school in order to minimize expenses, or they had to make a choice regarding which of the children would attend school. Girls are often the first to be sacrificed in such situations. Third, in some cases, the children stopped going to school in order to make a direct contribution to the family income.

Recommendations:

• It is necessary for the status and capacity of teachers to be improved, and for both professional and financial incentive systems to be adopted in order to improve performance and to encourage teachers to work in disadvantaged areas. Similarly, better-qualified in­dividuals must be attracted into the teaching profession and teachers must receive adequate training through pre-service teacher training programmes.

• The EU must place sufficient emphasis on concerns regarding educational provision for Kurdish children, in the context of accession negotiations, in order to encourage Turkey to meet its interna­tional obligations.

Anti Terror - Law

Following the violent demonstrations that took place in towns and cities centering on

Diyarbakır in March 2006, in which 10 demonstrators and onlookers were killed, four of

them children, the authorities have increasingly sought to prosecute the protestors, the

majority of them children, under anti-terrorism legislation.The figures also show a year on year increase in the numbers of children prosecuted and a dramatic increase in the number of children under 15 years of age being prosecuted in 2008. Untill today, no police officer has been brought to justice in relation to their conduct at the demonstrations.

A Kurdish child told Amnesty International “I was on my way home from school, with another child from school. By the time we had arrived back to our neighbourhood from the school we were sweaty. A police officer came up to me and grabbed me. He felt my stomach and he said that I was sweaty and that I had come from the demonstration. I had a notebook in my hands, they ripped it up. I showed them my school identity card and they ripped this up too. I didn’t know what to say, I couldn’t speak. I said that I hadn’t done anything. They hit me without showing any mercy.”

In a report published by Amnesty International in june 2010 they expressed their concern about disproportionate use of force during demonstrations and ill-treatment and torture at the time of arrest, pre-detention and detention of the children. For a number of reasons, such as the fact that children were tried in adult courts (made possible by the anti-terrorism law), statements were sometimes taken without a lawyer or social worker present, no social analysis were made during the trials (which is required by law) and insufficient acces to healthcare, education, psychological support and leisure activities, these practices can be said to violate numerous articles of the the ICRC (art 40 – treatment of juvenile justice, art 37 – torture and detention, ...). Local human rights and children’s rights groups frequently raised concerns that the detention of child demonstrators removes them from family socialization and may deprive them of the possibility of continuing their education. Some expressed concern that many children might become radicalized in prison and in the long-term profoundly alienated from their families and the broader society.

Moreover, the ATL has had a devastating effect on the whole of the Kurdish community. A lot of adults are also tried under this law, which definition of terrorism is overly broad, vague and focusses rather on the aims (“changing the caracteristics of the Republic, damaging the indivisible unity of the State, ...) than its tactics such as violence. The ATL (Art 2) makes it possible to be charged as a member of a terrorist organisation without having committed a serious violent crime or to be sentenced for committing an alleged crime in name of such an organisation without being a member. Art 7/2 criminalizes making propaganda for a terrorist organisation without being a member. Court rulings argue that the pro-Kurdish protests have been announced by websites and newspapers regarded by the Turkish state to be associated with the PKK, thus making demonstrating 'committing a crime in name of a terrorist organisation'. This concern was also shared in the EU's 2010 Progress report for Turkey.

In July 2010, ammendments were made after heavy pressure from media and human rights advocates. According to these amendments, children tried under the ATL had to be released from adult prisons and their cases have to be reopened in Children's Courts according to the Children's Judicial System. Practice has shown that the release of the children faced many delays and some southeastern cities do not have special Children's Courts.

Also, police violence and arbitrary arrests of minors still occur during pro-Kurdish demonstrations. Just recently, during widespread demonstrations in the Kurdish regions marking the anniversary of the arrest of PKK-leader Abdullah Öcalan on the 15^th of february, 55 children were arrested and brought to trial. Now, the courts apply other Articles 220/6 and 314/2 of the disputed law to detain minors.

Recommandations:

• Pressure Turkish government to ensure the right to peacefull demonstrations for both adults and minors in Southeast Turkey.
• Amend anti-terrorism legislation, prevent unfair prosecutions under anti-terrorism legislation by bringing the definition of, terrorism in Turkish law into line with international standards and norms, notably the principles of legality and legal certainty²;
• Detention: Ensure that children are detained only as a last resort and for the shortest period possible; where there is no alternative, ensure that the manner of detention takes into account the needs of their age; Ensure that children are provided with immediate legal assistance upon apprehension and during questioning. Ensure that children are not held in adult detention facilities; When detention is unavoidable, ensure that specialist facilities are available for the detention of children; Inform the child’s family without delay regarding where the child is being detained and allow them to have contact with the child.

Land Mines

Turkey has entered a period of intensive armed conflict particularly in Southeastern Anatolia in 1984 following the coup d'etat in September 12^th, 1980. This period was experienced in a more severe way in Eastern and Southeastern Anatolia and a “State of Emergency” was declared in many cities and towns of this part of the country between 1987-2002 using excuses of armed conflict in the region. Between 1989-1992, 39 thousand landmines were laid around facilities of security forces in Eastern and Southeastern Anatolia. According to the 1999 report of Landmine Monitor, landmines are used by both State security forces and opposing armed forces. Turkey has two landmine victims every week.

Evacuted villages are surrounded by mines. These mines constitute a major obstacle for return to villages. Immigrants moved to cities or towns close to their villages. After “Return to Village” law, they can go back and work on their farms, graze their livestock in fields around. This results in new deaths and injuries. Particularly children are under significant danger. Because of bad economical conditions, children sometimes contribute to the family budget by collecting mines and selling them to armed forces.

A law on mines has been prepared in Turkey. The draft law consist of solely the Turkish-Syrian border. The mines in the interior parts of the borders are ignored and borders with Iraq and Iran are not even considered. In addition, this draft law does not include any regulation about civilians who are victims of mine explosions. It also does not imply any arrangements for providing information to civilians and particularly children living in mined areas or marking mined zones in interior parts of the borders with warning signs. Also, the mine law was not prepared in accordance with Ottawa Convention. Turkey should have had destroy all mines in her stock before March 1st, 2008. This never happened. There are 981.778 mines laid under land in Turkey as of 2009.

The Turkish government plans to issue a tender for commercial companies to demine areas along the Syrian border. Clearance of all mined areas on the Syrian border would cost around US$600 million and would be undertaken by companies that would use the land for agriculture in order to create new employment opportunities in the region. Should this plan work out, it would confiscate a 510-kilometre-long (317-mile-long) stretch of mostly fertile land which would be granted to big companies, potentially hindering the small farmers from going back to their villages, unless they become low-paid wageworkers.


More importantly, the Turkish government has until now made no single effort to develop a Mine Risk Education policy towards children or adults. Currently, only NGO's are involved in these kind of projects.


Recommendations:

• The mines in interior parts of borders threaten lives of civilians more than the mines at the borders. Mines in these zones should be swept away.
• Since mines are located under earth and land slides due to climatic conditions (such as rain, snow, wind), mines move under earth. Thus, it is highly probable for a mine laid in a particular field to slide to another field due to climatic changes. There should be informative activities about the locations of mined zones and mapping of these zones should be presented to civilians.
• Programs, in accordance with needs of local people should be prepared.
• There should be treatment and rehabilitation programs for people who suffered from mine explosions. A legal arrangement should be made for those who faced with damages of landmines. There should be a compensation for their loss.
• There should be a new mine law; and all landmines at the borders and interior parts of the border should be swept away.
• Turkey should stick to clauses of Ottawa Convention

General policy recommendations

• Pressure the Turkish governments to live up to its procedural and legal obligations under the ICRC and submit periodic reports.
• Keep the Kurdish question and minority rights a focus point in EU-Turkey relations, disregarding geopolitical intrests and dynamics. Approaching the Kurdish question from a terrorism-angle only is not beneficial for the promotion and implementation of children's rights in the region.
• Demand segregated data for the amounts of IPA grants spend in east and south-east Turkey and especially on the amounts of IPA money spend on the promotion of children's rights in the area.
• Actively monitor the situation of Kurdish children in Turkey and ensure that their needs are addressed as a central part of the reform process;
• Actively support existing local civil society groups working on children’s rights and encour­age the establishment of new groups.
• Establish a positive discrimination approach for the Kurdish regions within the IPA framework.

1In the Municpality of Baglar (Diyarbakir) for exemple, the average number of pupils per class is more than 70.c

• 2As a first step to achieving this: Amend Turkish Penal Code Articles 220/6 and 220/7 that allow persons to be convicted of membership of a “terrorist” organization on the basis that they have committed crimes in the name of the organization or have knowingly and willingly assisted such an organization; Amend Article 7/2 of the Anti-Terrorism Law ensuring distinction is made between supporting political aims which are shared by a “terrorist” organization with promoting that organization including its violent methods and actions.