In the occasional training programs that I deliver, I ask: “Could you estimate the number of femicides reported and quantified by the media and similar platforms, in the last year?” The participants’ estimates increase year after year. The estimates are way higher than the actual figures, and when I disclose the latter, the participants react by saying, “Oh, really! Is that the actual figure? I thought it would be much higher.” 

We are either killed, or somehow survive, only to suffer from various forms of violence. We may or may not survive while experiencing the life imposed upon us by the prevalent gender regime. We are not simple icons in statistical charts. We are not the “rising numbers” in studies or media scans on violence. 

But our death or survival whets the public’s appetite and draws its attention only when the numbers grow ever higher; only then do we become a topic worthy of discussion. Our death or survival leaves a few short phrases in social media feeds replete with images of cheerful breakfasts among friends, funny cat photos, cacti in bloom, a few slogans, and various business news. 

Otherwise, our death and life constitute an expense item in the public sector’s “cost” calculations… 

I remember that at an international meeting, in a presentation before public sector officials, the following phrase was used: “Violence against women swells the costs in the public budget by billions of dollars.” Upon hearing these billion dollar figures deemed to be “remarkable”, we are expected to exclaim, “Oh my God, that’s way too much!” 

Let us add the following to the cost of violence towards women: Women suffering from violence cannot work or produce, not to mention their hospital and treatment expenses. When divorce comes into play, the cost increases further. 

Let us imagine how much further the costs would increase if the state were to fulfill its public responsibilities? The state would have to protect women and prevent violence; then there are costs associated with rehabilitation, investigation and criminal enforcement. The state would also have to cover the costs of imprisoned men. This would certainly provide a boost to the economy, but it would cost a lot nonetheless. So, let us avoid all of these cost items. 

Could we continue business as usual if we were to slash costs somewhat? If the cost dropped to one dollar, it would be manageable, right? Couldn’t we stop combating violence then? How many femicides can our budget cover this year? Does fatality decrease or increase the cost, in your view? 

Solidarity Saves Lives!

Which calculation could change our opinion on violence? When one objects to this grave ethical error, they respond, “Well, that’s the only perspective that institutional structures would understand.” Nothing could be farther from the truth! Public institutions and their workforce are ultimately composed of individuals who experience gender-based violence first hand. 

And like everyone else, they need to hear this:

Not one woman less!

Your eyelash shall not fall to the ground!

To those who ask, “How can one achieve that? What would be the right method?”, women across the world give a clear answer: the Istanbul Convention. The Istanbul Convention rendered visible what we had been saying for over 20 years. 

Long before the Istanbul Convention came into force in 2011, women across the world had built pressure on the Convention on the Elimination of all Forms of Discrimination Against Women (CEDAW) with their reports, gradually getting results. 

There are two dynamics underlying this convention upholding women’s demands and placing these within the framework of fundamental human rights. The first is the shared experience of subjugation that women face under the patriarchal social order, and the second is their experience of solidarity showing them that they can struggle against domination only collectively. 

Over the years, we waged so many struggles, learning where to highlight our differences and where and how to build our unity. We have thus turned difference and unity, merger and separation into our strength, rather than weakness. We know better than anyone else how we separate and then reunite. As such, we best know how to achieve this once again, and not anybody else.

One of the nine fundamental human rights conventions of the United Nations (UN), CEDAW had at first not covered the subject of violence in its main text. It is only thanks to women’s efforts that this shortcoming in such a major convention was remedied, first by the general recommendation no. 12 in 1989 and then by the general recommendation no. 19 in 1992. The unquenchable demand for combating gender-based violence towards women was finally met by the Istanbul Convention.

This is not an ordinary historical account. This story actually points out something else. “The Istanbul Convention saves lives”; yes, but do you know what else does so? Solidarity. This is what this story is telling us. It shows that we have been the protagonists of this struggle since its inception. The Istanbul Convention is a perfect example of what women’s solidarity can achieve.

And do you know why we won’t give up? Because we know that there would be no reason why a state truly intent on taking sincere, effective and realistic measures against violence to withdraw from this convention. Whether conservative, liberal, progressive or conservative, any state across the world has to assume its responsibility in combating violence. The Istanbul Convention explains to public authorities in an elaborate manner how to fulfill this responsibility, and how to combat violence. 

The combat against gender-based violence towards women existed long before states began viewing it as their public responsibility, and their need to assume this responsibility was discussed at the 1993 Vienna conference. Women’s solidarity paved the way for revising the sexist language in the United Nations Universal Declaration of Human Rights, and drafting the convention for the prevention of all kinds of discrimination against women as well as the Istanbul Convention. Then, this same solidarity defended its gains. And it will always do so. 

Istanbul convention was not the first; it will not be the last

I hark back to the days when I worked in a women’s shelter. I had suggested that we paint a tree on the wall: a huge tree with branches offering a solution to each and every problem. With branches that read income, education, financial support, health, security, housing and empowerment. Then the branches would divide further into twigs representing a multitude of public services, civil society support schemes and various other solutions. At the ends of the branches, there would be flowers or fruits bearing names like empowerment, liberty, confidence, bliss, health, unity and love. So that upon stepping into the shelter, women would first see that beautiful tree. Then, they would again lay eyes on that tree whenever they walked through that corridor. They would stand before it and ponder, marking various branches for themselves. I wanted that tree to provide us all with oxygen, relief and power. 

The Istanbul Convention represents that tree in my eyes. Yet now, I feel as if someone has burned or chopped that tree down. It is as if all my solution proposals have disappeared along with that tree. Whenever I tell women that the convention saves lives, I also worry whether they will fear for their lives, now that Turkey has withdrawn from the convention. 

I fear casting a shadow over the powerful women’s movement and solidarity, seeming to suggest that women are alone and unprotected now that the convention is no more. 

Every time I use the phrase “Istanbul Convention saves lives”, I stop and think for a moment. I suddenly become the first woman to lay eyes on that tree. Then I think to myself: Don’t worry, “Istanbul Convention saves lives”, yet it is actually women’s solidarity that keeps the Istanbul Convention alive. Don’t worry, because you shall never walk alone! Because, we won’t give up!” 

Can we combat violence without the Istanbul convention? 

Can Turkey, the first country to express out loud its wish to withdraw from the convention, continue to combat violence? Can one combat violence only when such a convention exists? Don’t the ministries and relevant institutions give the message that the fight against violence will continue at full speed? 

The real question here is whether these messages are realistic and sincere. We have all gone through a long process across the world and in Turkey, prompting us to give a negative answer to this question. 

Gender-based violence is among the most conspicuous instruments of a binary society based on the domination of one sex over the other. As in Hartmann’s famous definition, violence is the most conspicuous manifestation of patriarchy, a system of control over women’s labor and body. Yet no one yields to violence and murder. 

If one end of the thread is combating violence, let us not forget that the other end leads to inegalitarian power relations between genders and then a social structure based on these power relations. We also see education, healthcare, marriage, inheritance rights, participation in politics and all levels of decision-making, participation in economic life, decent work conditions, equal pay, division of domestic chores, and sharing of income. In all these dimensions, we see that the current social order perpetuating men’s privileged lives has to be transformed. 

So, it is as if, across the world, the male mind is thinking, “Let’s appear to combat violence so that the inequalities found at the other end of this thread remain invisible.” It also seems to think, “Let us combat violence in such a way that we can maintain gender-based inequality.” This is what I understand when I hear the phrase, “combating violence in accordance with our traditions and values”. For this reason, I don’t think that those rejecting the Istanbul Convention can give a realistic and sincere message of combating violence. Each pretext presented for withdrawing from the Istanbul Convention is tantamount to declaring that gender equality is unachievable and inappropriate and shall not be allowed.

People in this country lost so much time whenever the state stated the obvious. They took so much time to realize their mistake. How much effort they spent to explain to themselves and others their regret for supporting the government years ago although they were indeed quite right back then. 

I have drawn the following conclusion from ongoing political debates: The opposition should not limit itself to a passive attitude of only targeting those holding power and reacting to the latter’s actions and influence. 

On the contrary, the opposition must engage in a praxis incorporating every neglected issue and giving voice to everyone, to reach the goal of social progress. 

It is precisely because of this that there is only one way that I know, recognize, and uphold. We Need Feminism. ‘Why?’ you may ask. Because, my conception of feminism is built upon collective empowerment, learning from one another, and solidarity…

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In the declaration issued by EŞİK Platform, it was emphasized that the withdrawal decision was null and void, and all actors including the Parliament were called upon to take action against the decision:

“The decision in question has not a legal but political rationale! The Istanbul Convention was approved unanimously by the Parliament, and so Turkey cannot be pulled out with a Presidential Decision. Therefore, the said decision is invalid, Turkey is still bound by the Istanbul Convention and must fulfil its obligations under the Convention. One of the foremost duties of the Parliament is to prevent violence towards women and femicides, which border on gendercide in Turkey. Against the government’s efforts to by-pass the convention, we call upon the opposition parties to embrace the will of the people as embodied in the Parliament.”

The statement issued by Federation of Turkish Women’s Association underlined the fact that “Pulling out of the İstanbul Convention with a Presidential decision is unlawful”. 

We Will End Femicides Platform organized a massive protest in Istanbul’s Kadıköy district on March 20, 2021 to protest the decision to withdraw from the Convention, raising the banner “Withdraw the Decision, Implement the Convention” and driving home the message “You cannot eradicate overnight the acquisitions of the struggles we have been waging for many years”.

Mor Çatı Women’s Shelter Foundation published a declaration, stating “As women, we will give up neither the gains achieved over many years of struggle, nor the fight for our lives, nor solidarity among women! We reject the decision to withdraw from İstanbul Convention!” 

Women’s Coalition issued a statement with a striking title that read “The state does not give women the chance to live free of violence”. The statement underlined, “Even if you encroach upon our legal protections, we women shall continue our fight for our lives and for a world free of violence.”

Women gathering in İstanbul’s Kadıköy district upon a call by We Will End Femicides Platform and EŞİK Platform defended the convention and stated that they will not abandon their gains. 

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The decision to withdraw came as a final blow to the women and girls of the country who have long faced serious issues of domestic and other forms of violence as well as femicide, without the support of genuine policies of protection or a properly functioning judicial system. Many perpetrators have gone unpunished as a result. 

This decision to withdraw from the İstanbul Convention forms only one piece of Turkey’s poor human rights record, which can easily be described as at its worst point in decades. The developments since 2 March 2021 alone, the date President Erdoğan announced the government’s so-called ‘human rights action plan’, clearly demonstrate the seriousness of the situation. On 18 March 2021, the chief public prosecutor of the Supreme Court filed a case with the Constitutional Court requesting the closure of the People’s Democratic Party (HDP), the pro-Kurdish political party. On 17 March 2021, a prominent human rights defender and MP from HDP, Mr. Ömer Faruk Gergerlioğlu, was stripped of his MP status. Four days later, Gergerlioğlu was taken into custody by police on the parliament premises. On 19 March 2021, the co-president of the Human Rights Association (İHD), Mr. Öztürk Türkdoğan, was detained. Both were released from custody. The president’s decision to withdraw from the Convention followed these events, which together are clear signs that respect for human rights and rule of law of the country is subsiding dramatically by the day.

The international community reacted to the president’s decision with several statements, including from the United Nations, the Council of Europe (CoE), and the European Union (EU). Each expressed concerns, regrets, and disappointments and asked Turkey (the president in other words) to reconsider this decision. However, no evaluation has been made on the ‘legal effect’ of the decision by these institutions, nor by state parties to the İstanbul Convention. 

As a result, calls to the international community from within the country to give the issue more rigorous attention are becoming louder. The plea is clear: ‘International and regional institutions, human rights mechanisms, individual countries must review their policies on Turkey thoroughly and take a firmer stance to address these actions.’ 

The president’s decision raises several very important international law questions that need to be duly addressed by state parties to the İstanbul Convention and the Council of Europe as the regional institution, under which the İstanbul Convention had been drafted and adopted.

An initial set of matters to be highlighted and discussed may be articulated as below:

1- What are the rules governing states’ withdrawal from international human rights treaties? Why should state parties to the İstanbul Convention, and especially the CoE organs and, formally respond to the notification from the Turkish president’s office?

Article 80 of the İstanbul Convention permits any parties to the Convention to ‘denounce’ it by a formal notification given to the Secretary-General of the Council of Europe. The article further provides for a 3-month transition period meaning that a valid withdrawal would become effective 3 months after the date the notification received. The president’s office notified the Secretary-General of the Council of Europe’s office on 22 March 2021. Article 81 of the Convention requires the Secretary-General to notify other state parties of such actions. This is to allow the state parties of the Convention to react. The İstanbul Convention remains silent on the specific rules around “what procedure the country concerned must follow domestically for a valid withdrawal” which opens the way for the application of the principles of the law of treaties and human rights law to the matter.

Withdrawal from human rights treaties and principles governing it is a phenomenon that has been discussed by the international community recently. Criteria set by the Inter-American Court of Human Rights in its December 2020 advisory opinion on Venezuela’s withdrawal from the Inter-American Convention on Human Rights (available in Spanish here, discussions in English here) provides an extremely helpful guide on the issue. The Court states that in cases, which the interest of the organisation concerned is at stake, its organs, members, and state parties to the treaty must share their opinions, and objections, if there is any, on the validity of a country’s attempt to exit from it.  

The Secretary-General of the Council of Europe plays a vital role in the implementation of the treaty as well as the Group of Experts on Action against Violence against Women and Domestic Violence (GREVIO) and the Committee of Parties and state parties. The role of the EU in this process is also relevant. This is not only because the issue is related to Turkey’s human rights record, which is the fundamental factor forming the basis of the relationship of the EU with Turkey, but because the EU is in the process of ratifying the Convention. The attempt of the Turkish president to withdraw from the Convention and the legal effect of his decision is a matter that must be analysed and addressed by these actors. 

The İstanbul Convention is a vital instrument that was found to provide the golden standards for the protection of women and girls. The explanatory report of the Convention makes a direct reference to “the core values of the Council of Europe” and the fact that the Convention is a step forward to advance those values. The preamble of the Convention states that the aim of the Convention is “to create a Europe free from violence against women and domestic violence.” The Turkish president’s decision, however, goes against these core values and damages the CoE’s aim to reach its goal of violence-free Europe. Therefore, it is against the interests of the CoE as an institution. 

Furthermore, the law of treaties is governed by three important principles; 1) free consent, 2) good faith, and 3) pacta sunt servanda (agreements must be kept).  According to the Inter-American Court, the state parties to a treaty and relevant organs must assess good faith in cases of withdrawal decisions. In making this assessment, they should take into account several important factors. Among them, for example, if the country concerned has serious and systemic human rights violation issues, if the democratic institutions in the country are eroded and if there is “a manifest, irregular or unconstitutional alteration or rupture of the democratic order”, the good faith needs to be seriously questioned (paragraph 72). 

Also, it must be evident that the decision to withdraw followed a plural, public debate, and the rules of representative democracy were respected throughout the process. This must certainly include those, whose rights would be affected most if the withdrawal took an effect. Lastly, the constitutional provisions on withdrawals from treaties must be duly followed in the country. As in many countries, such actions require a legislative act rather than an executive action, this must be respected and observed.

2- What does an initial analysis of the president’s decision look like from an international law perspective with a human rights law-specific lens? In other words, does this decision qualify as a valid withdrawal by Turkey from the İstanbul Convention? 

Against the principles explained under the first question, one could at least rightly argue that there are fundamental issues around the validity of the president’s decision to withdraw from the İstanbul Convention. The detailed constitutional law analysis of the decision has been made in Başak Çalı’s recent article supported by the legal analysis made by scholars and lawyers in Turkey, e.g. several bar associations, Constitutional Law Research Association (Anayasa Hukuku Araştırmaları Derneği). It is rightly argued that ratification of the İstanbul Convention followed a legislative act as per Article 90 of Turkey’s Constitution (Law no. 6251 adopted on 24 November 2011). Since the Convention became a part of the domestic law, a piece of legislation in other words, in this way, it can only be repealed by another legislative act that would be carried out by the parliament. This means that the president does not have the competency under Turkey’s constitution to withdraw the country from the İstanbul Convention, which renders his decision fundamentally unconstitutional and therefore ‘void’. Çalı argues that since Article 46(1) of the Vienna Convention on the Law of Treaties, by analogy, requires the action of withdrawal to not to “manifestly violate a rule of fundamental importance in domestic law”, this void action of the president cannot be accepted as a ‘valid withdrawal of the country’ from the İstanbul Convention. 

In addition to this, explanations made by the government officials, including Mr. Fahrettin Altun – the communications director of the president – indicate that the decision to withdraw from the Convention was based on the biased political agenda of the governing political parties. They made several references to discriminatory and homophobic views against the LGBTI+ community to justify the decision and the allegation that the Convention is an instilment against the religious and cultural values of people (in fact referring only to their supporters’ ‘values’). No plural, democratic and open public debate was carried out before the decision, nor were the views of the communities that will be affected by the decision most taken into account. With the human rights record of the country facing one of the most challenging regressions yet, democratic institutions, including the parliament and judiciary, are paralysed by the government, making it difficult to infer good faith. These factors, and many more, should give enough bases to the CoE members, organs, as well as the member states of the Convention, and its organs to challenge the validity of the president’s decision.     

3- What are Turkey’s standing human rights obligations towards women and other disadvantaged groups including LGBTI+ regardless of the questions around the validity of the decision? 

A valid withdrawal from international treaties does not mean that the obligations of the state concerned cease entirely. 

First, the country is still bound by the treaty during the transition period. As Article 80 of the Convention sets 3 months, even if one agrees that Turkey validly withdrew from the Convention, it is still bound by it until after the 3 months. 

Second, Turkey is still responsible for the implementation of the treaty from the time of its ratification until the time its withdrawal comes into effect. In other words, a treaty withdrawal cannot be applied retrospectively. 

Third, Turkey still has to implement the decision of the treaty monitoring bodies on its compliance with the treaty at the time the treaty was still in force. 

Fourth, the obligations of Turkey under other human rights treaties continue, as withdrawal from the İstanbul Convention does not have any impact on the state’s other treaty obligations. This means that protection provided to, among others, women, girls, LGBTI+ people and other groups, prohibition of violence and discrimination targeting them, and gender equality are rights that are protected under the country’s other treaty obligations. 

Fifth, the state remains bound by the norms of customary law, those derived from general principles of international law and jus cogens (peremptory norms). Protection of women, girls, and others from violence is directly linked to these areas of law, therefore, continuing to bind Turkey on many aspects.   

4- Statements do not suffice:

Turkey’s withdrawal from the İstanbul Convention has the potential to set a dangerous precedent not only for Turkey but other European states. There are voices, sometimes strong, sometimes weak, advocating for similar withdrawals, including from the ECtHR. If a firm international reaction is not shown, the very notion of universal protection of human rights will face greater challenges, especially in Europe, that might become existential. 

Especially while the EU summit is underway and very soft remarks are heard from the heads of the EU states, it is important to underline once again the seriousness of this matter. The potential disruption Turkey’s withdrawal from a human rights convention could cause – not only for the people of Turkey but Europe and beyond – is crucial to put under the spotlight. The CoE states, organs, state parties of the İstanbul Convention, its organs, and the EU must adopt a formal stance concerning the president’s decision and test the validity of it against international law standards. Also, the PACE may consider inviting the Venice Commission to focus on the questions this action raised and define principles, rules, exceptions, and procedures to be followed for state withdrawals from the CoE human rights conventions, which will guide the members and other institutions facing similar situations.

*Ayşe Bingöl Demir is a lawyer specialised in international human rights law and domestic law and judicial procedures in Turkey. She practiced in İstanbul between 2003 and 2017 followed by her work at the Media Legal Defence Initiative in London as part of the legal team until 2019. She was a research fellow with Middlesex University School of Law between 2017 and January 2020. Currently based in New York, she acts as the co-director of the Turkey Human Rights Litigation Support Project -an initiative hosted by the Middlesex University School of Law- and a consultant for several national and international civil society organizations.

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