Extradition of Gulen will be a tough test for US-Turkey relations

Turkish Prime Minister Binali Yıldırım confirmed that an official request for the extradition of Fethullah Gulen has been sent to the US. Ankara accuses the cleric, who lives in Pennsylvania, of masterminding last Friday’s failed plot to oust President Erdogan which left 208 people dead and nearly 1,500 others wounded.

Gulen has strenuously denied any involvement in the coup. Western officials and commentators are also deeply sceptical about Erdogan’s claim, some to the point of believing conspiracy theories by suggesting the coup was a hoax; Erdogan’s version of the Reichstag fire which was used as a pretext by Hitler to take absolute control.

Turkish officials have stressed that the fingerprints of “Gulenists” are all over the coup. They claim that “Gulenists” have built a parallel state; their large network of supporters and loyalists are more than capable of destabilising the state and overthrowing the government. One Turkish commentator wrote: “The Gulen movement has hundreds of thousands of members, who all seem to believe that the former mosque preacher has some special divine guidance and wisdom… they see him as the ‘chosen one’ — the Mahdi, the Islamic version of the messiah concept. This belief makes the community very tight knit with full obedience to Gulen. There is no room for any dissent, let alone criticism.”

“If the Gulenists had merely established schools, charities and non-governmental organisations all over the world then there would no problem,” he added. “However, as numerous events, anecdotes and journalistic reports show, the Gulenists also have a dark side: their covert organisation within the state, a project that’s been going on for decades with the aim of establishing bureaucratic control over the state.”

Tensions between Erdogan and Gulen prompted the Turkish president to the cleric’s extradition since 2013. This however is the first official extradition request submitted to Washington. Over the past few days, Turkish authorities would have been acquiring evidence connecting Gulen with the failed plot to depose Erdogan. Any formal request will have been accompanied with a warrant of arrest issued by a judge or another competent judicial officer; a statement of the facts of the case including evidence proving that Fethullah Gulen is responsible for the coup.

Turkey will be hoping that the US will hand over Gulen without much complication just as they handed over Abdullah Ocalan in 1999 after he was captured in an operation that involved the CIA.    Turkey is one of 157 countries with which the US has an extradition agreement. The Treaty on Extradition and Mutual Assistance in Criminal Matters between the United States of America and the Republic of Turkey was signed in 1979. It was ratified a year later with the treaty coming into force in 1981.

Does this mean that the US will be forced to hand over Fethullah Gulen to Turkish authorities for the cleric to face prosecution under the Turkish justice system? It very much depends on the interpretation of the treaty adopted by US officials in Washington as well as considerations that are external to the treaty. Like so much in international law, relations between the two countries and broader political calculations will influence the decision making process.

The rules governing extradition between the countries are a complex maze. As this report for the US Congress states: “Extradition treaties are in the nature of a contract and generate the most controversy with respect to those matters for which extradition may not be had. In addition to an explicit list of crimes for which extradition may be granted, most modern extradition treaties also identify various classes of offenses for which extradition may or must be denied. Common among these are provisions excluding purely military and political offenses; capital offenses; crimes that are punishable under only the laws of one of the parties to the treaty; crimes committed outside the country seeking extradition.”

While these points may appear self-evident there is much within the treaty itself that will be a source of controversy and conflict. The tensions will be played out in the coming weeks and months, where we can expect to see the strength of relations between the two countries tested to the limit. The complicated extradition treaty with its convoluted legal language and multiple layers of exceptions to every legal obligation will provide ample wiggle room for both countries to claim that their interpretation is correct.

Turkish official will be hoping that their case for extraditing Gulen meets all the necessary conditions set out in the agreement. This includes providing evidence that Gulen has carried out one of the dozens of extraditable offences listed in the treaty. They include murder, manslaughter, assault, robbery, larceny, burglary, embezzlement, extortion as well as a host of other offences.

Gulen however has been accused of treason and a plot to overthrow a government is not classified as an extraditable offence. The treaty notes that “extradition will not be granted if the offense for which extradition is requested is regarded by the requested Party to be of a political character or an offense connected with such an offense”. If Obama’s team conclude that that the request for extradition has, in fact, been made to prosecutes or punish Gulen, for an offense of a political character or on account of his political opinions they will argue that they have legitimate grounds to refuse the Turkish authorities their request for extradition.

Erdogan’s officials will be hoping to overcome this obstacle by providing evidence that Gulen targeted the head of state. According to the treaty “any offense committed or attempted against a Head of State or a Head of Government or against a member of their families shall not be deemed to be an offense of a political character.” However, Ankara may find that this provision does not tip the decision in their favour as ultimately “the right to determine the nature of the offense which entails the refusal of extradition rests solely within the authority of the requested party.”

Turkey will also need to demonstrate that it will comply with the “Rule of Speciality”. This provision exists to ensure that the extradited person will be tried only for the crimes for which extradition has been granted. Even if Turkish officials provide sufficient evidence of the cleric’s involvement in the coup, as well as other extraditable offences, Obama will not want to appear naïve by being outsmarted by Turkey in surrendering Gulen only to see him being tried for something else. US officials may suspect that Ankara cannot be trusted under the current climate to insure that Gulen is not made a scapegoat.

Though the two countries have been strong allies in the fight against Daesh, they will find a lot to disagree on over the extradition of Gulen. Even if Turkey is able to provide solid evidence of Gulen’s hand in the coup, as well as attempts to assassinate the president, the extradition treaty can be interpreted in ways that may justify Washington’s refusal. In the end, the final decision to extradite Gulen will not be swayed by the treaty, wider political calculations will be the deciding factor. This is sure to test the strength of relations between the two countries.

The views expressed in this article belong to the author and do not necessarily reflect the editorial policy of Middle East Monitor.