Representations of the ‘Kurds’ by the Turkish Judiciary

Abstract

Although the tensions around Kurdish ethnic identity and the extent of human rights violations against Kurds throughout the history of the Turkish Republic are well-documented, little research exists about the role played by the Turkish judiciary in relation to the legal position, demands, and identity of the Kurds in Turkey. An analysis of the role of the judiciary is demanded especially given its position as one of the guardians of the foundational values of the Turkish state. This article analyzes how Turkey’s judiciary has navigated the demands of Kurdish people, how it has represented Kurds, and to what extent it has accommodated their alterity in its jurisprudence. Among its findings are that Turkish judges have participated in reproducing Turkish nationalism within their legal discourse, which continues to re-emerge in the case law at various points in time. Since the 1970s, the judiciary has represented Kurds as having no distinct existence and as being Turkish. Somewhat contradictorily, it has also acknowledged the Kurds while consistently rejecting Kurdism. Reproducing a legal orientalist discourse, the judiciary has constructed the Kurds as the ‘other’ to justify civilizing them by legal means. The lack of self-criticism of the dominant strain in the jurisprudence, based on the narrative of the Turkishness of the Kurds, indicates that the judiciary in Turkey has failed to produce a culturally pluralist jurisprudence which accommodates the demands of the Kurds. It has also produced an ethno-culturist jurisprudence with reference to the Turkish ethnie, and perpetuated the discourse of Turkish ethnic nationalism.