How to define the crime of Turkey’s coup plotters?
There are many cases that raise questions on where to draw the line on criminal actions during the coup attempt on the night of July 15, 2016.
The situation of the personnel of military transport aircraft that took off from Kayseri is a striking case in this debate. In this incident, eight military transport aircraft took off from Kayseri Erkilet Airport between 00.30 and 02.00 early on July 16, while the coup attempt was still ongoing.
The key point here is that the personnel of these aircraft strongly objected to coup plotter Colonel Erhan Baltacıoğlu, who was the operations commander at the base and who gave them the order to take off. Nearly all of the flight crew members had watched the news about the coup attempt on TV and learned that the government had declared the bid unconstitutional. They thus noted that it would not be correct to carry commando units from various cities to Ankara.
In the end, however, Baltacıoğlu ordered the pilots and crews to fly, saying “this is an order.” He also misguided them by saying it was a mission against the coup attempt and their units had been ordered to suppress the coup. This incident culminated in the pilots’ landing in Malatya, after they complied with warnings and orders of the Turkish Air Force’s operational base in Eskişehir which remained loyal to the constitutional line.
Among the legal cases related to the coup attempt, there are many examples resembling the Kayseri Erkilet incident. Take the example of the captain who was called to the barracks on the evening of the coup attempt upon claims that a “counterterrorism operation” was ongoing; he complied with orders to drive his tank on the streets of Ankara.
Similar questions can be applied to the cases of thousands of privates across Turkey who were only on the streets because they were following the orders of their Gülenist commanders.
We face the same question in every such example: Can soldiers who participated in a coup attempt without knowing or understanding that they were contributing to the coup be accused of participating in the coup attempt?
To solve this problem we must consider one of the most fundamental concepts of penal law: The concept of “intent.” Article 21 of the Turkish Penal Code contains a provision that is clear enough: “The existence of a criminal offence depends upon the presence of intent. Intent is defined as knowingly and willingly realizing the elements in the legal definition of an offence.”
According to the Penal Code, for the crime of a coup to be committed, a soldier must have driven their tank with the intent to stage a coup. Of course, the intention to destroy democracy by bombing parliament’s Grand National Assembly with a F-16 warplane is clear.
In the context of the July 2016 coup attempt, the Turkish Armed Forces Internal Service Code Law No. 211 and the Military Penal Code Law No. 1,520 must be taken into consideration. Article 14 of the Internal Service Code overtly determines the position of the subordinate and compels the subordinate to obey his/her superior: “The subordinate is absolutely obliged to obey his/her superiors. The subordinate fulfills his/her duties and implements the orders he/she receives and cannot exceed his/her authority.”
However, Article 16 of the Internal Service Code also prevents the superior from committing an unlawful act: “The superior cannot issue orders to his/her subordinates that are irrelevant to their service.”
Let’s evaluate these provisions with the provisions of the Military Penal Code. Article 41 of the code protects the subordinate: “In matters concerning service, if the service involves a crime, the one who issues the order is responsible for committing the crime.” What happens when an order that does not concern service is issued? In that case, sub-clause B in clause 3 comes into action: “If the subordinate is aware of the fact that the superior’s order involves an action that contains the intent to commit crime, then the subordinate receives the penalty of a companionate perpetrator.” In other words, the subordinate is considered guilty if he/she knows that the order involves criminal action.
Of course, Article 137 of the constitution supersedes all of the provisions above: “When a person employed in public service, irrespective of his position or status, finds an order given by his/her superiors to be contrary to the provisions of by-laws, regulations, laws, or the constitution, they shall not carry it out. They shall inform the person giving the order of this inconsistency … An order that in itself constitutes an offense will under no circumstances be executed; the person who executes such an order will not evade responsibility.”
Ultimately, it is the responsibility of judges to decide on the delimitations of the crime of attempting to commit a military coup. But it is crucial that these trials take place as quickly as possible, both for the immediate punishment of members of the secret Gülenist organization and also for the release of innocent people.