Ali Yıldız*
Since 2016, seeking the extradition of its foes living abroad has been a permanent item on the Turkish government’s foreign policy agenda. In every foreign policy discussion regardless of what it might be about, Turkish officials seem to take the opportunity to moot extradition requests to their counterparts. Finland and Sweden’s bid for NATO membership, which required Turkey’s approval as a NATO member, was no exception.
As soon as Finland and Sweden formally applied to join NATO, Turkey said it would not approve their membership as they were harboring terrorist groups. Turkey has long been critical of Finland and Sweden for allowing Kurdish groups that Turkey considered offshoots of the outlawed Kurdistan Workers’ Party (PKK) to operate freely within their borders as well as for turning down Turkey’s formal requests for the extradition of certain members of the Gülen movement, accused by the Turkish government of masterminding a failed coup in 2016 and labelled as a terrorist organization, although the movement strongly denies involvement in the failed putsch or any terrorist activity.
After long negotiations facilitated by NATO Secretary-General Jens Stoltenberg, it was finally announced on Tuesday that Turkey, Finland and Sweden had reached an agreement in the form of a trilateral memorandum and that as a result Turkey had lifted its veto for the two countries’ NATO membership.
According to the memorandum, Finland and Sweden confirm that the PKK is a proscribed terrorist organization (§5) and that they will not provide support to either the People’s Protection Units (YPG) or the Democratic Union Party (PYD), considered by Turkey the offshoots of the PKK in Syria, or to the organization referred to as FETO in Turkey, that is, the Gülen movement (§4). “Finland and Sweden will address Turkiye’s pending deportation or extradition requests of terror suspects expeditiously and thoroughly, taking into account information, evidence and intelligence provided by Turkiye, and establish necessary bilateral legal frameworks to facilitate extradition and security cooperation with Turkiye, in accordance with the European Convention on Extradition,” says article 8 of the memorandum.
The Finnish government explicitly underlined that the signed document is a political commitment. Indeed, in international relations, memorandums are preferred when parties want to avoid legally binding documents but only to express an intention that it is not to be binding as a matter of international law.
Although some say the crisis is over and the path for Sweden and Finland’s NATO membership is cleared, former prime minister of Sweden Carl Bildt is still skeptical. “I can just hope that [Turkey] will not change its view along the way of negotiations and ratification. There have been a disturbing element of unpredictability over its behavior,” he tweeted.
Turkey has immediately started to exploit the memorandum. On Wednesday Justice Minister Bekir Bozdağ said Turkey would renew a total of 33 extradition requests, 21 from Sweden and 12 from Finland, for the political dissidents who took refuge in these countries. Bozdağ said that of those 33 requests, 16 concern members of the Gülen movement, while the other 17 involve individuals who are allegedly members of the PKK, listed as a terrorist organization by Turkey, the US and the EU.
On the other hand, Finnish President Sauli Niinisto told reporters: “We have not been presented any claims for now, as far as I know. We don’t in fact have any unsettled extradition requests at the moment. We have processed 14 out of 16 [requests by Turkey], and two decisions have been blocked by the fact that the targets have not been located.”
The memorandum states that any extradition requests sent by Turkey will be addressed in accordance with the European Convention on Extradition, according to which extradition shall not be granted if the concerned offense is regarded by the requested party as a political offense or as an offense connected to a political offense. The same rule shall apply if the requested party has substantial grounds for believing that a request for extradition for an ordinary criminal offense has been made for the purpose of prosecuting or punishing a person on account of his race, religion, nationality or political opinion, or that that person’s position may be prejudiced for any of these reasons.
Yet the memorandum has caused concerns and anxiety in Sweden and Finland. The Finnish Presidency, therefore, said, “As we enhance our cooperation on counterterrorism, arms exports and extraditions, Finland naturally continues to operate according to its national legislation.” Similarly, Swedish Prime Minister Magdalena Andersson needed to address the reactions from politicians and others and said: “There are those in Sweden who feel some anxiety, and with that, I want to make clear three things. First of all, we never extradite anyone who is a Swedish citizen, and I know some of those who have expressed concerns are Swedish citizens, so they don’t need to worry. Secondly, we will of course, as before, follow Swedish and international law. … Thirdly, this means that if one is not conducting terrorism activity, one doesn’t need to be worried.” She also needed to clarify Sweden’s position on the PYD, the YPG and the Gülen movement and said, “We do not classify them as terrorists in any way.”
Yet she has been called to parliament’s foreign affairs select committee to explain developments regarding extraditions to Turkey by Märta Stenevi, the Green Party joint leader, who called the memorandum “very worrying.”
Can the memorandum affect the extradition proceedings?
The signed document does not produce a binding commitment in terms of international law. It is no more than an expression of political intent as explicitly underlined in the Finnish Presidency’s statement. Sweden and Finland are parties to the European Convention on Human Rights, the UN Convention against Torture and the 1951 Refugee Convention. These conventions require the state party to comply with the principle of non-refoulement, which guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm. This principle applies to all migrants at all times, irrespective of migration status. The principle of non-refoulement originated from customary international law and binds all states regardless of whether they are party to any convention stipulating this principle. The memorandum, therefore, can in no way override such a rock-solid principle.
The courts of Finland and Sweden have so far refused all extradition requests from Turkey. In the most recent example, the Supreme Court of Sweden concluded that a request by Turkey for the extradition of journalist Levent Kenez should be rejected as he was awarded refugee status due to his being persecuted by Turkey. While concluding such, the court invoked Section 7 of the country’s extradition law, which reads: “A person may not be extradited if, on account of his origin, belonging to a particular social group, his religious or political views, or otherwise on account of political circumstances, he would run the risk of being subjected in the foreign state to persecution which is directed against his life or liberty or is otherwise of a harsh nature, or if he does not enjoy protection against being sent to a state in which he would run such a risk.”
The groups at risk, however, should be vigilant. As underlined by Henri Vanhanen, political advisor to Finland’s National Coalition Party, during the ratification procedures of the accession agreement on the two countries’ NATO membership, Turkey will likely look closely at what is happening in terms of the memorandum and will demand that concrete steps be taken concerning its extradition requests.
Finally, Sweden and Finland should be aware that they are setting a bad example by making extradition, which is a very delicate and well-established legal procedure, a subject for political negotiations.
* Ali Yıldız is a Brussels-based lawyer and founder of The Arrested Lawyers Initiative.