Can the use of teargas be considered as a human rights violation? : A critical analysis on the policing of the Gezi Park protests

Suddenly somebody rang the door. People outside were shouting that Berkin’s head is broken and that we should come down immediately. When I went out there was thick teargas and there were police in the street. It was hard to see what was happening. Berkin’s friends had already taken him to the hospital. By the time we arrived at the hospital he was already in surgery.”1

These words are those of the father of 14-year-old Berkin Elvan, who was shot by a tear gas canister while going to the bakery to buy some bread for a usual family breakfast on 16 June 2013, and is still in medically induced coma after six months. The 27 May 2013 is a date that should be noted down not only for Turkish, but also for the international political history. What started out as an action of sit-in protest in order to protect one of the rare green areas in Istanbul became a countrywide resistance against the ongoing unlawful, anti-democratic, and oppressing acts of the government. Those who are familiar with the late history of the civil commotions would not have expected such conclusions of an environmentalist movement. Nevertheless, the underlying cause of the unexpected course of events was on all of the international media the next day: the woman in red.

Now, the excessive use of force by the police, the burnt tents in the park, seniors and children affected by the tear gas were witnessed by everybody, and what was announced on Facebook to the people of Ankara in the afternoon of the 31 May did mention the ‘green’, yet the bigger picture was slightly different: “We are gathering in Kuğulu Park (the symbolic park of Ankara) to say no to the police terrorism!”

The aftermath of the policing of the Gezi Park protests in 80 cities was the death of six young civilians; more than 8,000 people injured due to tear gas, rubber bullets, water cannons, beatings and live ammunition; 61 protesters seriously injured, 11 lost their eyes.2 The Turkish State, being a party to the European Convention on Human Rights, a member of the United Nations and the Council of Europe, and an official candidate for the membership of European Union, affirmed that the police response was completely within the boundaries of law. However, what the international human rights law precisely offers and the legal status of teargas still remained unclear. Moreover, the last popular question raised after the government response against ‘Arab Spring’ attempts in Bahrain is caught on one more time: is the use of teargas a human rights violation?

Anonymous graffiti during the demonstrations

(http://duvardageziparki.tumblr.com/)

In the first six days of the protests, Turkish General Directorate of Security used up twice the amount of fourteen European states’ total tear gas consumption in 2012.3 The tear gas stocks, supposedly to be kept until 2015, were dried by the 20th day of demonstrations. Around 130,000 canisters were used systematically on the demonstrators.

The Convention on the Prohibition of the Development, Production, Stockpiling and Use of Chemical Weapons and on their Destruction of 13 January 1993 (the CWC) – to which Turkey became a party in 1997 – does not mention teargas under the list of chemical weapons. However, according to the Oya Ataman v Turkey4 judgment of the European Court of Human Rights,

“… [I]t is recognised that the use of “pepper spray” can produce effects such as respiratory problems, nausea, vomiting, irritation of the respiratory tract, irritation of the tear ducts and eyes, spasms, chest pain, dermatitis or allergies. In strong doses, it may cause necrosis of tissue in the respiratory or digestive tract, pulmonary oedema or internal haemorrhaging (haemorrhaging of the suprarenal gland).

The European Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) concerned over the use of tear gas also considers that:

 “… [P]epper spray [tear gas] is a potentially dangerous substance and should not be used in confined spaces. Even when used in open spaces the CPT has serious reservations; if exceptionally it needs to be used, there should be clearly defined safeguards in place. For example, persons exposed to pepper spray should be granted immediate access to a medical doctor and be offered an antidote. Pepper spray should never be deployed against a prisoner who has already been brought under control.” (CPT/Inf (2009) 25, paragraph 79)

Prohibiton of torture and ill treatment appears in Article 3 of the European Convention on Human Rights. Describing torture as a deliberate inhuman treatment causing very serious and cruel mental and physical suffering5, the Court has found Turkey guilty of violating Article 3 of the Convention in Ali Güneş v Turkey6 and most recently in the Abdullah Yaşa v Turkey7 case. The interesting fact about Abdullah Yaşa judgment is that although the Court admitted the protests were not peaceful, the ‘firing’ of tear gas grenades by a launcher entailed the risk of serious inju
ry and the police officers held a greater autonomy of action, therefore there had been an violation of Article 3. On the other hand, the decision can also be interpreted as holding that using pepper spray (tear gas) in the approved direction and position or solely spraying the gas to the demonstrator may not amount to violation of Article 3.

 But the most relevant case that can be associated to Gezi Park is Ali Güneş v Turkey. Despite the fact that the government kept mentioning the protesters as terrorists, the peaceful structure of the action has found a broad reception in international media.8 Ali Güneş, a high school teacher, intending to peacefully protest against the NATO Summit that took place in Istanbul (28-29 June 2004), was beaten up and subjected to tear gas by the police in spite of being unarmed. The Court came up with a sensitive and critical conclusion, stating that even the mere spraying of tear gas by the police would amount to inhuman and degrading treatment under Article 3. They did not deem it necessary to examine separately if the applicant was beaten up, for the prevalent circumstances had already subjected him to physical and mental suffering.

Watching hotels used as infirmaries and houses of civilians bombed with tear gas live, not only human rights–conscious people, but also ‘the person on the street’ became aware of the destroying strains of tear gas. Even though the Court of Strasbourg extended and developed its jurisdiction, tear gas is still not considered as chemical weapon and its usage by the states are within the states’ immunity. The degrading and inhuman structure of this chemical is known; therefore its legality should be subject to discussion. Moreover, the wide margin of appreciation for the initiative of intervention left to the police, should be arranged by national laws according to the guidance of the Court.

 Dicle Su Han, LLM

[While writing this article, the former Minister for Internal Affairs, who resigned on 25 December 2013, answered to a parliamentary question on the material used in water cannons –TOMA– during the Gezi Park protests. He confessed that the tear gas OC (Oleoresincapsimum) was mixed by water and spewed out on protestors. On 17 June 2013, the Istanbul Governor had stated that there was no chemical in the water used by the police.]


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 References:

1 http://www.hrw.org/news/2013/07/16/turkey-end-incorrect-unlawful-use-teargas, last consulted in December 2013

2 http://www.amnesty.org/en/library/asset/EUR44/022/2013/en/0ba8c4cc-b059-4b88-9c52-8fbd652c6766/eur440222013en.pdf, last consulted in December 2013

3  http://www.haberturk.com/gundem/haber/853607-bilgehandan-apde-gaz-aciklamasi, last consulted in December 2013

4  74552/01

5 Ireland v UK (1978) 2 EHRR 25

6 9829/07

7 44827/08

8 http://www.bbc.co.uk/news/world-europe-22995036, last consulted in December 2013



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