Turkish military code rejects surrendering to enemy out of fear

"The Turkish Military Penal Code [TACK] does not contain provisions concerning being afraid and surrendering. You are expected to fight until you run out of ammunition.

Turkish military code rejects surrendering to enemy out of fear
You are expected to do everything in order not to be captured by the enemy. If you are captured, then at such a time you will do everything to escape. Failing to do so is a crime," İsmail Göksel, the Niğde deputy from the Justice and Development Party (AK Party), says.

Göksel is a retired military judge who worked at the Mamak military prison for 11 years. While he acknowledges that it would be wrong to make comments about a trial in progress, he emphasizes that the eight Turkish soldiers who were kidnapped by the outlawed Kurdistan Workers' Party (PKK) and subsequently released will be put on trial under military rules that were translated from the German Military Penal Code dated May 22, 1930. "In other words, the soldiers will be tried and punished under a law modeled after Hitler's Germany," he says.

Göksel worked at various posts for the Turkish Armed Forces (TSK) from 1966 to 1992. He is experienced in all types of military trials and has lectured on military criminal law at many universities. He entered politics in 1992 upon the advice of former Justice Minister Tevket Kazan.

Göksel gave an exclusive interview to Today's Zaman concerning the trial of the eight Turkish soldiers who were kidnapped by the PKK and released at the initiative of three Democratic Society Party (DTP) deputies. At the beginning of the interview, Göksel states that the TACK was modeled after the corresponding code of Hitler's Germany. Underlining that he has no information about the cross-examination of the soldiers, he talks about which provisions the soldiers might be tried under.

"There is an article in the TACK that penalizes those who pass to the area controlled by the enemy. This passage is assumed to be done voluntarily. Soldiers may pass to the enemy-controlled area for a number of reasons. The code penalizes a soldier or sentry at the border who leaves the sentry point and passes to the other side. This may happen at the border or on the front line. This may also include going to a foreign country. A uniformed soldier cannot go to another country without approval. In the case of terrorism, terrorists can be considered the enemy. Accordingly, the case of the soldiers will be examined and if such a possibility arises, the soldiers will be referred to the military prosecutor's office of the Turkish General Staff, which will conduct the prosecution. The military unit to which the soldiers belong conducts an examination and submits its findings to the prosecutor, if needed. Then the prosecutor conducts an examination, eventually deciding either on their trial or dismissal of the case. In the current case, the military judicial authorities to which soldiers are connected are authorized to judge them. These authorities are the military unit in Diyarbakır and the Turkish General Staff," he says.

Göksel does not want to talk about the ongoing prosecution but prefers to explain how the TACK can be interpreted with respect to the current case. Noting that there are numerous speculations about the incident, Göksel maintains that the TACK does not contain provisions on the surrendering of Turkish soldiers and it does not accept surrender.

"The TACK does not contain provisions concerning being afraid. There are only emergencies and force majeure. If you have not exhausted all your ammunition, then you will be held liable. If you are captured by the enemy without firing a single bullet, these factors will be taken into consideration. You are expected to exert your best effort to not be captured by the enemy. If you have the opportunity, you are expected to escape and if you have run out of ammunition, you will use the ammunition of your fellow soldiers who have died. Playing dead is not a crime. All these points are identified in the cross-examination to be conducted by the prosecutor. If the prosecutor holds that the soldiers have been captured by the enemy in an emergency or due to force majeure, he will dismiss the case and the soldier in question will continue his military service in his unit. Otherwise, he will be referred to the court," he says.

Highlighting another interesting aspect of the TACK, Göksel points out that the behavior of the soldiers not only during armed clashes, but also after they were taken to the Kandil Mountains, will be decisive as to whether or not they will be tried.

"If you are at war with the enemy and if you are taken prisoner by the enemy despite all your efforts, you are expected to exert all your efforts to escape. You cannot sit down without doing anything after capture. You should try to escape. Failing to do so is a crime," he says.

Göksel points out that under the Geneva Conventions, Turkish soldiers cannot be held liable for saying goodbye to PKK militants and for remarks they make at that time and that they cannot be prosecuted for saying, "They are treating us well."

Göksel gives the following information about military trials: "Trials are conducted per the provisions of the military code of criminal procedures. Turkey has put on trial numerous military officers with ranks ranging from private to general and not because of Turkey's EU bid. We have witnessed many high-ranking commanders being tried. Every military official, from a private to an officer, is subject to prosecution. As part of harmonization with EU legislation, we have only renounced the prosecution of civilians in military courts. Generals are tried by the General Staff's military court. For the trial of ordinary officers, the court board consists of two [military] judges and one line officer. This line officer should have higher rank and seniority than the officers being tried. This rule serves the continuation of discipline among members of the army."

How are generals tried? The retired military judge's reply to this question is interesting.

"In the trial of generals, the court board consists of two [military] judges and three generals. These three generals must have higher rank and seniority than the general being tried. How can a full general [orgeneral] be tried? The deputy chief of General Staff or the Air Forces commander may have seniority over the Naval Forces commander. However, there is no provision about the prosecution of the chief of General Staff under the TACK. This is not even envisaged. It is rumored that the new constitution will contain provisions for the prosecution of the chief of General Staff by the Supreme State Council [Yüce Divan]. Currently, there are loopholes in this respect. The president can be tried, but the chief of General Staff cannot."

'Changing borders a political decision'

In addition to his office as a military judge, Göksel participated in the 1974 Turkish intervention in Cyprus. Göksel was a member of the military unit that drew up the border between the Turkish Republic of Northern Cyprus (KKTC) and the Greek administration in the south. Led by Gen. Necati Özgen, Göksel and his colleagues mapped the line through painstaking efforts. "Whether the borders can change or not is a political decision. Parties may discuss it at the table. One cannot know the outcome of these negotiations. Strategically speaking, some locations should not be given to the other side, such as Lefka. This is because water resources are there. Yet, at some points, the border passes through some people's gardens, leaving the garden on one side and the well on the other. These can be solved with a humanitarian outlook; however, borders cannot be changed by principle," he says.

Sunday's Zaman

Güncelleme Tarihi: 12 Kasım 2007, 13:46