Institutionalizing the State of Exception: The Imrali Isolation Regime

The attempt to understand the prison isolation of Imrali as a negative expression of a prohibition order does not do justice to the issue at hand.  The weakness of this attempt lies in the desire to explain power and politics in the framework of juristic thought. It seems more promising to explain the concept of isolation through its positive attributes, as a technique of control and administration. The following shall present a critique, or rather a self-criticism, of the level at which we have led the discourse up to now.

What notion of law, what kind of politics underlies the isolation in Imrali? Despite all the failures of the isolation, we must ask ourselves: What does isolation lead to? What does it bring about? What purpose does it serve?

Turkish prisons are part of the extensive legal-political structures of the country. While the prison system may first seem to be an issue that is primarily concerned with punishment (deprivation of freedom) and re-socialization (and respective mechanisms) its implementation measures rather remind one of the practical implementation of judicial agreements, which include extensive penal measures. These arrangements include a.o. gratification, incentives and sanctions to prevent inmates from engaging in certain behaviours or actions. Thus, the prisoner is granted for instance more visiting time or other opportunities as long as he or she is “well-behaved”. Different measures can be taken for behaviour deemed inappropriate, from the denial of existing rights to continuous cell confinement.

Is Imrali part of any such prison system? In a way, it has never been part of a system that is based on any of the above-mentioned legal arrangements. From the beginning, the asymmetrical features that are part of its structure rendered Imrali to be something that stands outside of law, or rather, in contradiction to exiting law. At a technical, physical or legal level, it is neither part of the prison system, nor completely independent of it.

Imrali has always been an expression of a remarkably effective, new, and exceptional technique of power, which is neither based on a rule of law, nor completely excludes it as a principle. Giorgio Agamben’s claim that “the question about whether or not the events at the camp are lawful is meaningless”, applies also to the situation on Imrali Island. Imrali’s relationship to principles of law is tightly connected to the circumstance that the island constitutes a sphere in which law is being suspended.

Imrali island is not merely a space where a prison is located. The island stands for a system by means of which a completely new punishment regime is being implemented. Everything on the island is organized according to this system. The island was turned into a place without humans. Its surrounding was declared as a military zone. Metaphorically, the island presents the most favourable geographical conditions for the institutionalization of such exceptional measures. An island is neither outside nor inside; its particularity lies in its secluded-ness. The twenty-year old physical isolation constitutes part of a larger aspect. It means the disruption of any relation to the outside world, a policy of isolation, death, and a life that is restricted in the tightest manner. In this situation, connection to society is cut off, while connection to the power system remains. Due to the intensity of the applied exceptional legislation, this connection remains particularly strong in fact. On one hand, a prevalence of details that enable power to be felt absolutely, on the other hand, lives that are forced to hang in a limbo at the brink of total lawlessness. All persons, who set foot on the island, including those employed by the state, must submit to its system. The state of exception regime does not tolerate any exceptions.

On Imrali, the system’s primary aim was not to deport Mr Öcalan to a place that is considered to be a “secure location”. The actual intention was to seclude him, to turn him into an “other”, to isolate and atomize him, to constantly observe and in a way to dissolve him. Therefore, the Imrali system should not be reduced to notions like severe punishment, revenge and forced obedience (although these elements of course constitute part of the whole). The actual aim of the system constitutes in separating, breaking and turning the prisoner into an obedient tool.

Precisely for this reason, we understand the isolation system of Imrali not as a method of punishment, but rather as a method of control and administration. Part of this method is the surveillance and recording of all meetings with family members, lawyers or delegations, the overt or secret documentation of discussions between the prisoners on the island, the continuous video and audio surveillance of the individual cells and daily medical examinations. These measures are not mere safety precautions or means of intimidation. Rather, these are techniques through which information is gathered and analysed to be used for purposes of governance and influence in phases of political confrontation and conflict. There is a dual function by means of which information is extracted from the prisoner, while information is collected about him. The right to obtain and analyse all this information lies in the hands of those in charge, and who do not seem to be willing to share this information with others.

Another aspect of the administration methods is the control over the opportunities of the inmate to access information. For fifteen years, there was no access to television on Imrali, a restriction that does not apply to any other prison in the country. For a long time, Mr Öcalan was not allowed to keep more than three books at a time in his cell. Newspapers were only provided after they were carefully selected, censored and sometimes kept long enough beforehand to be outdated. It was thus decided what the prisoner was and was not allowed to know. Investigations and lawsuits were launched upon meetings with lawyers. With reference to individual sentences he said during meetings with his lawyers, Mr Öcalan was punished to 200 days in his cell. When lawyers arrived on Imrali to meet Öcalan, no political or other delegations were allowed access to the island. In turn, whenever such delegations were able to go to Imrali, lawyers were not allowed to visit the island. One measure that was implemented for the first fifteen years of the Imrali imprisonment is the perfect symbol for all of these aspects: a radio that was provided to Mr Öcalan in his cell was set on the official state radio channel, with the button to switch channels removed. This limitation policy was always maintained on Imrali with utmost care.

Imrali is an institution of law that serves as a prototype for actual methods of power and control  

It is impossible to understand Imrali as a system that was ordered only from above and completely planned beforehand. Without a doubt, many details were arranged at the beginning of Mr Öcalan’s imprisonment in such a way as to achieve certain aims.  With time, Imrali turned into an administrative technique, which derived its legitimacy from itself, expanded and was applied to other spheres of societal life.

Even if we understand Imrali as part of a system of law, we cannot avoid coming to the following conclusion: Imrali is an institution of law that serves as a prototype for the actual methods of power and control in Turkey. The continuous existence of Imrali as a state of exception regime over a period of twenty years made it possible for the state of exception or exceptional measures to spread to entirely different spheres. Imrali presents the core or the basis of this development.

For once, the democratic farce of the existing rule of law on Imrali became visible: Formal equality and judicial objectivity no longer play any role here.

 

  1. Formal equality: Formal equality before law is normally guaranteed through the blindness of jurisdiction, meaning that everybody is equal before law. What we have witnessed in Turkey over the past 25 years however is the tailoring of law to a single person. Regulations for exceptions were added to existing laws, which will be remembered as the “Öcalan laws”. These exceptional regulations were incessantly and exclusively applied on Imrali Prison Island. An example for this regulation is the right of the client to hold private meetings with his or her lawyers. The exception on Imrali however requires that a state official is present at all times during such meetings and that the meetings are recorded. This regulation was issued in Turkey in reaction to a decision of the European Court of Human Rights, which had criticized an unjust treatment of the inmate Öcalan. With the tightening of the legislation concerning life sentences in 2005, the status of hundreds of prisoners on death row in Turkey changed overnight. They were removed from their old cells and put into one-person cells. The intention behind this measure was to legitimize the praxis on Imrali and to spread it to the other prisons in the country. The apparatus that was constantly concerned with the creation of new measures was refined in such a way that any law amendment of new legislation in the country was examined on whether it would have any potential effect on the Imrali system. At times, the system was re-examined to check whether it continues to do justice to its exclusionary function. This exclusion developed into a culture that was deemed necessary for the maintenance of the entire system. A particularly striking example is the amnesty for students in 2011. The state was keenly concerned to ensure that Öcalan could not benefit from the amnesty, so that politically-motivated cases were from the onset excluded from qualifying for amnesty. While this praxis was first sold as an exceptional measure, over time, it developed into an amnesty legislation for students that excluded political offenses. All the special regulations that have been applied to one person in Imrali over the course of ten to fifteen years developed into general law with the declaration of the state of exception in 2016: specific legal measures for singled-out individuals or societal groups.

 

  1. Legality/Objectivity: Since 2005, all meetings on Imrali were supervised by a state representative and recorded. The content of the meetings was documented without any legal base. Instead, it was justified with a broad interpretation of the following legal regulation: “The files of suspicious lawyers may be confiscated.” Normally, it is not possible to extend legal exceptions through the re-interpretation of existing law. At best, freedom-related rights could be extended in this way.  Yet again, nobody attributed great meaning to this development. Since July 2011, no lawyers were allowed on Imrali island any longer. The island became completely inaccessible to them. This measure, too, did not have any legal or judicial base. It was simply the decision of a person in charge at the institution. Thus, based on an institutional decision, lawyers’ visits to a prison were undermined. The praxis of referring to institutional decisions rather than laws soon became a broadly applied administrative praxis. It is enough to recall the military curfews in 2015 and 2016 in dozens of Kurdish districts in Turkey. But how exactly did these declarations of the state of emergency, which had not yet been named as such, come about at the time? What legal base existed to legitimize those measures at the time? Through the far-reaching interpretation of paragraph 11/C21 of the  provincial administration law, the provincial governor, by an administrative decision (governorship decision) issued curfews on several towns, isolated them from the outside world, and thus suspended nearly all constitutional rights through executive decree. Practically the constitutionally-enshrined rights of millions of people were suspended with a single executive institutional decision.

This is precisely the administration technique that we are talking about. This is precisely what we mean when we say that the tactics and techniques introduced in Imrali are being expanded to society as a whole. Without a doubt, the legal discourse presents a safe and legitimate framework for analysis. But if we limit ourselves to this kind of discourse, we become victims of a superficial and negative discourse to an extent. We are faced with a power system that has decided to either abandon or undo any desire to be lawful. I support the view that the centre of this turn developed at least over the past 25 on Imrali. At hand is a form of hegemony that suspends the sovereignty of law during periods it considers urgent, a power apparatus that operates with an extraordinary authority. This authority does not recognize the principle of the separation of powers; rather, it is under the control of bureaucracy and has in fact taken over the power of law.

 

Spheres outside of the discourse around universally valid human rights

We can understand the structures in Imrali as a paradigm shift in criminal law. What does this change consist of? The aim is to create spaces that are not bound to the discourse around universally valid human rights. Since World War II, this discourse had served to put limits to states’ use of violence.  Another example for such kinds of purposefully created spheres is Guantánamo. Within the framework of the “War on Terror”, proclaimed by the United States in January 2002, people were arrested worldwide upon accusations of membership in violent extremist organizations such as al Qaeda or the Taliban. They were taken to the US military Camp Delta, a small piece of land in Cuba, which has been rented – or rather occupied – for a century. The media obtained footage of blindfolded and handcuffed prisoners in the camp with orange inmate clothing and chained feet, curled up on the floor. The US refused to accept these people as prisoners of war. At the same time, it was argued that the prisoners were not on US American territory and thus could not benefit fundamental human rights, which would have been the case for US citizens. Their imprisonments had not been preceded by a judicial decision but were a result of the US president to declare them “terrorists”. They had no right to due process, they had no contact to lawyers or family members, and they were subject to all sorts of torture methods. All these measures constituted a clear turn away from the fundamental rights that had been viewed as inviolable only in the 20th century.

In March 2002, John Yoo, former Deputy Assistant Attorney General at the Office of Legal Counsel in the U.S. Department of Justice  hit the nail, when describing the purpose of  Guantánamo: “What the administration is trying to do is to create a new rule of law.”2 [Translator’s note: The original phrasing may slightly vary from the translation]. In the case of the British citizen Feroz Abbasi a British court of appeal ruled that the accused was being arbitrarily held captive based on “legal black holes.”3

Ever since, Guantánamo has been regularly referred to as a “legal black hole”. In reference to the statement we made at the beginning, we can note that that which we describe as a paradigm shift or new rule of law concerns the creation of such legal black holes. Presidents and politicians change, days and seasons go by, lives and generations end; but the legal black holes remain intact. In fact, black holes tend to ever expand. At times, it is a prison, at times a concentration camp, sometimes it is a region or a town, other times it is an entire country that can be transformed into a big legal black hole.

Precisely because of this, the modern judicial discourse or justice apparatus do not find efficient answers to the questions raised by Guantánamo and Imrali. Human rights are supposed to protect the human body from suffering and pain. When it comes to the constant surveillance and documentation of the inmates, the withdrawal of entitled information, the extensive techniques of control and administration, the legal discourse fails to provide answers and can in fact be turned into a complicit or supporting addition to the system.

The Professionalization of the Imrali System

Let us consider the CPT, the European Council’s Committee for the Prevention of Torture, and the report that this institution published in March 2018.4 Even though this report appears academic, diplomatic and juridical, it fundamentally suffers from a lack of spirit and moral-ethical values. Instead of challenging the matter at hand, with this report, the CPT contributes to the attempt to professionalize the system at Imrali. Let us look at the efficient and legal suggestions in the report. The report notes to the Turkish government that the CPT cannot be expected to believe excuses to refuse to allow visits to Imrali, which include “bad weather conditions” or “issues with the ferry”. It is further added: “There is no legal base in Turkish law for the restrictions implemented in the year of 2013.” Thus, the violation of law is clearly mentioned. There are suggestions in the report: “To the extent to which the lawyer functions as a messenger for instructions, in special cases, an independent lawyer can be arranged to gain access.” Thus, instead of criticizing the fact that the authorities are violating a fundamental right, the report proposes to act rationally, to maintain an appearance and to employ an “independent lawyer”. An “independent” lawyer!

Likewise, the European Court of Human Rights (ECHR), another institution of the Council of Europe, follows a similar approach. After lawyers were banned from visiting Imrali in July 2011, Öcalan’s legal advisors turned to the ECHR in October of the same year. Their most important demand was access to their client. The isolation and the refusal to allow lawyers continue ever since however. Not only has the ECHR failed to take a decision on this matter, in the past 7 years, it did not even proceed to deliver the application submitted by the lawyers to the Turkish government and to demand a statement from the government as normally required per procedure.  One could write a separate article about the ECHR’s (lack of) stance since 2010, considering the trials on Roboskî*, the military curfews, and Imrali, which is why I will refrain from elaborating on this issue further at this point.

The Institutionalization of the State of Exception

»The exception in jurisprudence is analogous to the miracle in theology« (Carl Schmitt, Political Theology).5 It would have been impossible to find more suitable words! Even if all that is said falls into oblivion, it is miracles that continue to live in society’s memory. Miracles are based on a force that transcends nature and society. A new state of governance is being created wherein which a state of exception is being institutionalized, which perpetually repeats itself. It is these legal-political methods and administrative techniques that turn Imrali into a centre of power.

Imrali is being turned into a sphere of resistance through analysing and subverting this regime of power. Over the past 20 years, by rendering itself ungovernable, Imrali has been constituting the history of a resistance praxis against a technique of power! This praxis is based on rendering its behaviour and ability to speak unforeseeable; this is what it means to make oneself ungovernable, uncontrollable. This aspect would be the subject to further analysis.

For this reason, it is not sufficient to only criticize the institution at Imrali and its legal status. Even if we should be successful with this, we would have to accept watching Imrali being replaced another institution with the same purpose and effect. The way out of the Imrali isolation can therefore only be achieved with a legal-political re-configuration of the Imrali status and technique.

 

1             (Article 11/C) It is among the tasks and duties of the provincial governor to take the decisions and measures necessary to ensure peace and security within the borders of the province, to protect the immunity of the person, to guard the safety of the person, to provide public welfare, and engage in preventive law enforcement. To this end, the governor takes the necessary decisions and measures. The regulations of Article 66 apply to those, who do not abide by such decisions and measures.

2             Philippe Sands: Hukuksuz Dünya, Verlag Alfa, Übers. B. F. Çallı, İstanbul April 2016, S. 242–243.

3             ibid. S. 261

4             https://www.coe.int/en/web/cpt/-/council-of-europe-anti-torture-committee-publishes-report-on-imral-prison-turkey-

5             Carl Schmitt: Siyasal İlahiyat (Politische Theologie), Verlag Emre Zeybekoğlu – Dost Kitabevi, 2016, S. 42.