The reason has more to do with the legal requirements of the Turkish judicial system for extraditing suspects than political considerations, officials say. The legal obligations of Turkey stemming from being a signatory to the European Convention on Human Rights (ECHR) prohibit it from handing any person over to another country if the suspect will likely be executed.
In the past, Turkey was found guilty of violating Article 3 of the ECHR, which prohibits torture and “inhuman or degrading treatment or punishment.” The convention bars member states from extraditing foreign nationals to countries if there is a real risk of death or ill treatment.
According to the case law of the European Court of Human Rights (ECtHR), the right to political asylum is not explicitly protected by either the convention or its protocols. However, expulsion of an asylum seeker by a member state may create a conflict under Article 3 if substantial grounds have been shown for believing that the individual concerned, if deported, faces a real risk of being subjected to inhumane treatment. In such a case, Article 3 implies an obligation not to deport or extradite the person in question to that country.
Article 18 of Law No. 5237 of the Turkish Penal Code (TCK) specifically singles out international agreements, such as the ECHR, to which Turkey is a party as a reason for not granting an extradition request.
Hashimi is wanted in Iraq on terror charges for allegedly running death squads against Shiite pilgrims, government officials and security forces. Iraqi authorities issued a warrant for his arrest in December, touching off a political crisis in Baghdad and deepening the country’s sectarian divide just days after the US military withdrawal.
Iraq has not formally requested that Turkey hand over Hashimi. Hashimi said that he cannot receive a fair trial in Baghdad and has asked to be tried in Kirkuk, a city divided between Sunni Arabs and Kurds. The Iraqi government has said the case is purely criminal, that the prosecution is independent and that the government cannot intervene. A Baghdad judiciary panel rejected moving the case to Kirkuk and set a trial for May 3 in Baghdad.
Hashimi, who is currently in Turkey, is not expected to attend the trial. Even if there is no legal obligation preventing Turkey from handing over Hashimi, there is no political appetite in the Turkish capital for giving Hashimi up.
Hashimi recently said in an interview with CNN Türk, “The support for me is not because I am a Sunni,” noting that Turkish leaders understand the situation he is in and he can easily talk to Turkish Prime Minister Recep Tayyip Erdoğan and Foreign Minister Ahmet Davutoğlu whenever he wants.
Bilgay Duman, an expert on Iraq at the Ankara-based Center for Middle Eastern Strategic Research (ORSAM), told Today’s Zaman that the Hashimi issue should be evaluated from two aspects. “Firstly, the issue should be evaluated in terms of the close relationship between Hashimi and Turkey. Hashimi is one of our closest Iraqi allies. In this context, Hashimi has a special place in Turkish politics. Secondly, it should be evaluated in terms of interstate relations. Davutoğlu has already stated that Turkey will not return any politician or statesperson who seeks shelter in Turkey. This is an important point in our interstate relations,” said Duman.
Speaking with regards to Turkish-Iraqi relations in the face of the latest quarrels between Erdoğan and Iraqi Prime Minister Nouri al-Maliki, Hashimi said the current situation is not something he wants. He said Erdoğan’s anger towards Maliki stems from the Turkish prime minister’s awareness of Hashimi’s situation. He indicated [Hashimi] had told Erdoğan about how Maliki had jailed Hashimi’s guards and deployed tanks in front of his house.
The exiled vice president warned that the existing political problems in Iraq may turn into an all-out sectarian war, saying that he supported criticism made by the Turkish government on the matter.
He said he found Turkey’s concerns reasonable because any development in Iraq will affect Turkey.
Maliki accused Turkey of becoming a hostile state, engaging in “unjustified interference in Iraqi internal affairs,” “still… dreaming [of] controlling the region” and of becoming “an aggressive state towards all [in the region].”
Maliki’s statement was prompted by Erdoğan’s accusation that the Iraqi prime minister was pursuing “self-centered” policies against his coalition partners. He said these policies “seriously bother [leader of the Kurdistan Regional Government (KRG) Massoud] Barzani, the cross-sectarian Al Iraqiya group and Shiite groups” in Iraq after having talks with the Kurdish leader.
Regarding the crisis situation in Iraq, Duman underlined that in this situation Hashimi’s return would lead to a serious rise in tension and that this is not the situation sought by Turkey. “Hashimi still holds Iraq’s vice president position. In this case, I don’t think Turkey is going to return him unless there is a clear accusation or a court decision about him,” added Duman.
Atilla Sandıklı, chairman of the Wise Men Center for Strategic Studies (BİLGESAM), told Today’s Zaman that Turkey had already taken the risk of not returning Hashimi. “Barzani’s visit to Turkey, his meeting with Hashimi and Turkey’s hosting of these meetings is already evidence of Turkey’s stance towards Maliki,” said Sandıklı.
Maliki’s harshest remarks so far came at a time when Turkey was hosting two senior Iraqi politicians who are at odds with his government. Barzani arrived in Turkey for a two-day visit recently and Hashimi is currently in İstanbul.
“The Iraqi government had already criticized Turkey for hosting Hashimi on its lands but in return Turkey accused Maliki of running an authoritarian regime in Iraq and of excluding Sunnis from power structures. In the context of this conflict, Turkey has a reason for not returning Hashimi back to Iraq,” said Sandıklı.
“Turkey has expectations from the Maliki government and these expectations have reached a level that has raised tension between the two countries. If these expectations are not addressed by Maliki, Turkey will refuse to return Hashimi” said Sinan Ülgen, who heads the İstanbul-based Center for Economics and Foreign Policy Studies (EDAM).
When asked whether there was a legal obligation binding Turkey to return Hashimi, Ülgen replied that there should be an extradition agreement between Turkey and Iraq. “Turkey’s return of Hashimi depends on the bilateral agreement between two countries regarding extradition. If there is not such an agreement, Turkey will not be forced to return Hashimi,” said Ülgen. Hashimi arrived in Turkey in April after stops in Qatar and Sunni powerhouse Saudi Arabia. Turkish officials have not said how long he will stay.