Legal Violence Against Syrian Female Refugees in Turkey

Abstract

Turkey hosts the world’s largest community of Syrians displaced by the ongoing armed conflict. The object of this article is to explore the damaging effects of a hostile legal context on female Syrian refugees in Turkey. I base my analysis on scholarship that theorises immigration legislation as a system of legal violence and I argue that the Temporary Protection Regulation and the Law on Foreigners and International Protection that govern the legal status of refugees in Turkey inflict legal violence on Syrian female refugees. This legislation keeps them in the regime of temporary protection and prevents their access to international protection. The temporary protection regime serves furthermore as the main determinant for other forms of legal violence inflicted by various actors. I explore the effects of the Turkish government’s inaction in terms of preventing and sanctioning the abuse of Syrian female refugees as unpaid sex and household workers. I show that the extended legal limbo on the conditions of employment of Syrian refugees secures female Syrians as the most precarious workforce for Turkey’s various sectors. Finally I claim that the forced confinement of Syrian beggars in refugee camps is instrumentalised for their disciplinary regulation.

Introduction

The Syrian refugee crisis is considered as the largest forced migration since World War II. In April 2011, Syrians fleeing civil war started to cross into Turkey’s territory. As of March 2016, the number of registered Syrian refugees in Turkey had reached 2.7 million, with only 271,000 living in official accommodation centres (i.e. refugee camps) [Ministry of the Interior 2016; United Nations High Commissioner for Refugees (UNHCR) 2016]. The large unregistered urban refugee population means that the true figure is even higher. Women and children represent 77 % of Syrian refugees in Turkey (ibid).

The Turkish government has recently agreed to act as Europe’s gate keeper against refugees. According to the agreement concluded between the European Union (EU) and Turkey in March 2016, all new irregular migrants, including Syrians, crossing from Turkey to the Greek islands will be returned to Turkey (EU-Turkey Statement 2016). The Turkish government has also committed to take any necessary measures to prevent new sea or land routes for irregular migration opening from its territory to the EU (ibid). As the legal basis for Syrian refugees’ return to Turkey, the agreement refers to the EU Asylum Procedures Directive, which identifies a ‘safe third country’ and a ‘first country of asylum’ as countries to which asylum seekers can be returned with less than full examination of their asylum claims.¹

This article analyses the different and mutually reinforcing forms of legal violence inflicted on female Syrian refugees in Turkey; the country that hosts the world’s largest community of Syrians displaced by the ongoing conflict and that is qualified as ‘safe’ for Syrian refugees’ return by the EU. Analysis in the article is based on scholarship that theorises immigration legislation as a system of ‘legal violence’. In particular, I draw on work examining structural and symbolic violence by Menjívar and Abrego (2012). I use the conceptual lens of legal violence in order to capture the damaging effects of a hostile legal context (Menjívar 2013, 230) on female Syrian refugees in Turkey.

With the term legal violence, Menjívar and Abrego refer to the structural and symbolic violence codified in or amplified by law. They note that:

legal violence is at once structural in that it is exerted without identifiable perpetrators, and it is symbolic in that it is so thoroughly imposed by the social order that it becomes normalised as part of the cognitive repertoire of those exposed. (Menjívar and Abrego 2012, 1413).

Important aspects of ‘legal violence’ are also constitutive of ‘symbolic violence’ in the sense that law and legal practices normalise and legitimise the social asymmetries which result from racism, sexism and other forms of discrimination.

Turkey’s first law on immigration, the Law on Foreigners and International Protection, entered into force in April 2014. Prior to this date the legal status and rights of migrants and refugees were regulated in a piecemeal manner by the Regulation No. 1994/6169² and other inconsistent secondary legislation (Kirişçi 2001; Soykan 2010; Ekşi 2010). The preparatory work for the Law on Foreigners and International Protection coincided with the influx of Syrian refugees into Turkey. This article explores the gendered nature of the legal violence inflicted on female Syrian refugees by the Law on Foreigners and International Protection as well as by the Temporary Protection Regulation. These two texts constitute the main legislation regulating the legal status of Syrian refugees in Turkey.

In my analysis I focus on gendered aspects of legal violence. Menjívar and Abrego deal with gendered forms of legal violence in their work and emphasise that legal violence both follows and strengthens the gender axis of stratification (Menjívar 2008, 126–132). The socially accepted and lauded gender based violence is explicitly reinforced by the legislation or tacitly approved by its silence. Law contributes so that female immigrants and refugees accept their own dehumanisation as part of the social order (Abrego and Menjívar 2011, 12–21) The state is not always the direct agent of violence, but it enables violence against female refugees by leaving them exposed to various forms of abuse by different actors.

I use the concept of legal violence as a term that incorporates the forms of violence imposed and amplified by legal inaction. Legal inaction constitutes a powerful form through which legal violence is imposed when the sovereign authority deliberately refrains from promulgating legislation for regulating the activities that affect refugees’ lives and for protecting their rights. In many cases such legislation is in place but the legal authorities responsible for its implementation are inactive. Such is the case when prosecutors refrain from investigating the crimes that target refugees or when the public authorities do not take any action for sanctioning the wage discrimination against them. The article will analyse cases of legal inaction by the Turkish authorities that leave Syrian female refugees exposed to physical, sexual and economic violence of other actors.

The article first explores the establishment of the exceptional legal regime of temporary protection where Syrian refugees are prevented from accessing international legal protection. It analyses legal violence not only as a legislative activity or the inaction of legal authorities, but also as a performative exercise of sovereignty by executive actors where the existing legislation is suspended or where the exceptional legal regime is established for a certain group of refugees. I investigate Turkey’s temporary protection regime as the common denominator of the other forms of legal violence studied in this article. The second section examines the sexual exploitation of Syrian women and girls by means of the inaction of the relevant legal authorities. Here, legal violence is linked and mutually constitutive of the macro level patterned forms of structural violence that are particularly rooted in severe economic insecurity. The third section of the article focuses on how the law conditions economic violence against Syrian female refugees in the labour market. In the final section, I explore how the law disciplines Syrian beggars with the constant fear of deportation to refugee camps, which are places that lack security for women and girls.

Exiled in an Exceptional Legal Regime: Living ‘Permanently’ Under a Regime of ‘Temporary’ Protection

The main border drawn by Turkey’s asylum legislation separates European and non-European asylum seekers. Pursuant to Turkey’s declaration of geographical limitation made under Article 1 of the United Nations Convention relating to the Status of Refugees, the application of the Convention is limited “to persons who have become refugees as a result of events occurring in Europe” (United Nations 1951).³ The vast majority of asylum seekers in Turkey originate from non-European states. According to Regulation No. 1994/6169 that preceded the Law on Foreigners and International Protection, the UNHCR undertook the task of assessing their claims and seeking to resettle them outside Turkey. These asylum seekers were allowed to reside in Turkey temporarily until they were resettled to a third country.

Syrians started to cross into Turkish territory in April 2011. It was expected that they would be treated the same way as asylum seekers coming from other non-European countries and applying for asylum in a third country. However the Turkish government decided to treat the Syrian refugees in an exceptional legal regime. At an intergovernmental event in Geneva in October 2011, the Migration and Asylum Bureau under the Ministry of the Interior formally declared the policy governing the status of Syrian nationals in Turkey to be a ‘temporary protection’ regime (UNHCR 2014a). On 30 March 2012, almost 7 months after this declaration, the Ministry of the Interior issued ‘Circular No. 62 on the Reception and Accommodation of Syrian Arab Republic Nationals and Stateless Persons Resident in the Syrian Arab Republic, Who Arrive at Turkish Borders in Mass Influx to Seek Asylum.’ The Temporary Protection regime seems to be based on this circular, and it appears that the circular provides instructions to the police force’s Foreigners Departments regarding the procedures to be applied to different categories of Syrians. Still today this circular remains confidential and is not accessible to the public, to NGOs working in the field or to Members of Parliament (MPs).

The admission of Syrian refugees into Turkey’s territory as well as the decision to establish the temporary protection regime seems to be based on political considerations. Between the beginning of the arrivals in April 2011 and the issue of the secret Ministry of the Interior circular in March 2012, the only domestic legal basis for the temporary protection regime was Turkey’s 1994 Asylum Regulation. This Regulation provides that the mass movement of refugees be stopped at the border, and that asylum seekers be prevented from crossing into Turkey unless “no political decisions are taken to the contrary”. Since this provision has not been implemented in the case of the Syrian refugees, we are therefore able to interpret that a political decision was taken to the contrary.

While Syrian refugees were living in ‘legal limbo’, the new Turkish Law on Foreigners and International Protection entered into force on 14 April 2014. In line with Turkey’s declaration to the UN Convention relating to the Status of Refugees, Article 61 of the new law accords refugee status to persons:

who as a result of events occurring in European countries and owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his citizenship and is unable or, owing to such fear, is unwilling to avail himself or herself of the protection of that country; or who, not having a nationality and being outside the country of his former residence as a result of such events, is unable or, owing to such fear, is unwilling to return to it.

Any other individual who enters Turkey due to a well-founded fear of persecution can be granted a ‘conditional refugee status’ after a determination procedure and an evaluation of their application. Article 62 provides that conditional refugees shall be allowed to reside in Turkey temporarily until they are resettled to a third country.

Article 63 provides a ‘subsidiary protection’ status for those protection seekers who are not considered to be refugees or conditional refugees but would face a risk of the death penalty, torture or inhuman or degrading treatment, or serious threat of violence in situations of international or nationwide armed conflict at the country of origin. ‘Subsidiary protection’ beneficiaries receive a lesser set of rights and entitlements as compared to ‘refugee’ status holders. The new law provides a bare definition of temporary protection and does not bring any clarity to the precise legal scope of this regime.⁴ We had to wait for the adoption of the Temporary Protection Regulation in October 2014 to discover the scope of the Turkey’s temporary protection regime and the rights it provides.

The EU Directive 2001/55/EC on Temporary Protection is presented as the model for the Turkish temporary protection regime. The UNHCR has also issued guidelines on temporary protection (UNHCR 2014b). Notwithstanding the legally non-binding character of the guidelines, the principles they established are important since they present the UNHCR’s views of the 1951 Convention, of which Turkey is a party. I will briefly investigate the conformity of Turkey’s temporary protection regime with the international standards for temporary protection outlined by the EU Directive and the UNHCR Guidelines.

According to the EU Directive 2001/55/EC on Temporary Protection, temporary protection is an exceptional procedure during an emergency situation that involves a mass influx of displaced persons. Individual refugee status determination is not immediately practicable in such a situation because of the time and evidence required to do a full and fair evaluation of protection needs. Given the exceptional character of the regime the protection offered should be of limited duration. The UNHCR Guidelines on Temporary Protection or Stay Arrangements does not determine an exact duration for a temporary protection arrangement but underlines that it is not suitable if the stay becomes prolonged (UNHCR 2014b).

According to the EU Directive, the duration of temporary protection shall be one year. It may be extended automatically by six-monthly periods for a maximum of one further year. Where reasons for temporary protection persist, the Council may decide to extend that temporary protection by up to one year. The European Council on Refugees and Exiles (ECRE) stresses the exceptional character of temporary protection in its information note on the Council Directive (ECRE 2002). ECRE has advocated for a maximum duration of two years rather than three years as provided by the EU Directive. The EU Directive stipulates that temporary protection should not be used to undermine existing international obligations under international or regional refugee conventions, to discourage people from seeking asylum under the 1951 Refugee Convention or to encourage premature return.⁵ As for the situation of Syrian refugees in Turkey, Turkey’s Temporary Protection Regulation prohibits Syrians under temporary protection to apply for international protection.

The government has been resolute that Syrian refugees be kept within the borders of the temporary protection regime, even if they are legally eligible for other migrant statuses established by the new law. To that end, the provisional Article 1 of the Temporary Protection Regulation provides that persons coming from Syria due to events that have taken place in the country since 28 April 2011 shall be covered under temporary protection, even if they have filed an application for international protection. The Article urges that their individual applications for international protection shall not be processed during the implementation of temporary protection.

As such, Syrian refugees are exiled in an exceptional legal regime with no legal possibility of obtaining international protection. It is more than five years since Syrian refugees started to enter into Turkey’s territory, but they are still confined in the regime of temporary protection. An exceptional regime suitable only for a limited time has become the permanent legal regime for Syrian refugees in Turkey. The confinement in this regime for an indefinite time is an act of legal violence. Furthermore the temporary protection regime serves as the main determinant for other forms of legal violence inflicted on Syrian female refugees, since it outlaws them in an enclave where the government of Turkey suspends the validity of its legislation, including its Constitution, that could provide protection for Syrian refugees.

Article 16 of Turkey’s Constitution provides that “the fundamental rights and freedoms in respect to aliens may be restricted by law compatible with international law”. The constitutionally of the provisional Article 1 of the Temporary Protection Regulation should be discussed under the criteria of Article 16 in order to define whether this restriction is compatible with international law and whether it can be considered as a restriction enacted by law since it is provided in a regulation.

Turkey’s international obligations regarding the rights of refugees and asylum seekers are determined by the United Nations Convention relating to the Status of Refugees and the Council of Europe Convention on Preventing and Combating Violence Against Women and Domestic Violence (Istanbul Convention).⁶ Pursuant to Turkey’s geographical limitation to the application of the UN Convention, depending on whether they are persecuted as a result of events occurring in Europe or not, asylum seekers could be granted international protection under refugee or conditional refugee status in case they fulfil the concerned conditions. The provisional Article 1 of the Temporary Regulation, which categorically prevents all Syrians from applying for international protection for unlimited time is in conflict with Turkey’s international legal obligations under the UN Refugee Convention and is therefore in breach of Article 16 of Turkey’s Constitution.

While evaluating the compatibility of provisional Article 1 with Turkey’s obligations under the Council of Europe Istanbul Convention, the primary focus should be on Article 60 of the Convention. This Article urges that states parties “take the necessary legislative or other measures to ensure that gender‐based violence against women may be recognised as a form of persecution within the meaning of Article 1, A (2), of the 1951 Convention relating to the Status of Refugees and as a form of serious harm giving rise to complementary/subsidiary protection”. It also provides that parties shall ensure that a gender‐sensitive interpretation is given to each of the grounds outlined in the 1951 Geneva Convention and “that where it is established that the persecution feared is for one or more of these grounds, applicants shall be granted refugee status according to the applicable relevant instruments”.

However provisional Article 1 of the Temporary Protection Regulation categorically prevents all Syrian refugees from applying for international protection, without any prior evaluation of whether they faced gender-based violence as a form of persecution within the meaning of the 1951 Convention. It is in breach of Article 60 of Istanbul Convention and of Article 16 of the Turkey’s Constitution.

Article 16 of the Constitution urges that the fundamental rights and freedoms in respect to aliens may only be restricted by law. Commentators argue that the term ‘law’ should be widely interpreted in a way that includes secondary legislation like regulations and directives issued by the executive, but only in cases whereby secondary legislation finds explicit support in the primary legislation (Aybay and Dardağan Kibar 2010, 82–83). Accordingly, the discretionary power of the executive for regulating foreign persons’ rights in Turkey is limited to the implementation of the Law on Foreigners and International Protection. This law provides all foreigners who satisfy the requirements defined in the concerned provisions, the right to apply for international protection. The provisional Article 1 of the Temporary Regulation rule out this right for persons coming from Syria after a specific date. It is in breach of Article 16 of the Constitution since it prescribes a restriction that is not based on the Law on Foreigners and International Protection.

The keeping of Syrian refugees in the temporary protection regime for an indefinite period should be interpreted as a political strategy by the government of Turkey, given that it is openly involved in the Syrian conflict. Syrian refugees are detained in the temporary protection regime and are forced to accept its conditions given that their stay in Turkey’s territory depends on the sole discretion of the government. The Temporary Protection Regulation clearly demonstrates that the temporary protection regime is operated discretionally by the Council of Ministers. According to Article 9 of the Regulation, “The temporary protection decision shall be taken by the Council of Ministers upon the Ministry’s proposal.” Article 10 provides that the Council of Ministers is also solely authorised to determine who will be covered under temporary protection; the effective date of temporary protection and its duration if considered necessary; the conditions for extending and ending temporary protection; and whether or not temporary protection will be implemented country-wide or in a specific region. The very large discretionary power accorded to the Council of Ministers by the Temporary Protection Regulation is criticised by Turkish commentators (Dardağan Kibar 2013, 126; Ineli-Ciger 2015, 31–33).

Women and children represent 77 % of Syrian refugees in Turkey (UNHCR 2016) caught in the temporary protection regime. The Law on Foreigners and International Protection as well as the Temporary Protection Regulation ensure that the dependency of women is not only acknowledged but also reinforced by law. These two pieces of legislation consider ‘woman’ to be a dependant individual as a ‘mother’ or ‘wife’, or represent her as a vulnerable or victimised being under the category of ‘persons with special needs’ because she is ‘pregnant’, ‘alone with children’ or ‘the victim of physical or sexual violence’.⁷

On the other hand, while the rhetoric of the law recognises women as a vulnerable group, applying such a gender lens reveals that the law fails to create structures that will adequately mitigate or prevent abuses. Under the category of ‘persons with special needs’, the law and the regulation provide priority to some ‘vulnerable’ women for access to certain rights. However the ‘vulnerability’ ensures only limited privileges for female Syrian refugees within the sphere of the temporary protection regime, and it is still not possible for these ‘victimised’ women to cross the boundaries of this regime and obtain international protection.

Article 67 of the Law on Foreigners and International Protection stipulates that adequate treatment shall be provided to victims of torture, sexual assault, or other serious psychological, physical or sexual violence, in order to eliminate the damage caused by such actions. According Article 48 (3) of Temporary Protection Regulation, “Preventive and protective measures shall be immediately taken for foreigners who are identified to be victims of violence pursuant to Law No. 6284 on Protection of the Family and Prevention of Violence Against Women”. The Law No. 6284 provides that the international agreements to which Turkey is a party, especially Council of Europe Istanbul Convention [Article 1 (2)] shall prevail as the fundamental principles that have to be observed in its enforcement. Consequently the Temporary Protection Regulation Article 48 (3) interpreted in light of Law No. 6384’s explicit reference to the Istanbul Convention provides the obligation for Turkish authorities to implement the above mentioned Article 60 of this Convention.

Law Leaves Female Syrian Refugees Exploited as Sexual and House Workers at the Service of Turkey’s Men

Due to the ambiguity of their legal status in Turkey as well as the absolute poverty in which they live, Syrian women and girls are forced to marry with Turkish nationals as a survival strategy (Dinçer et al. 2013, 29; UNHCR 2014c, 4, 14, 62; Center for Middle Eastern Strategic Studies 2015, 16). Child marriages as well as polygamous marriages with Syrian women and girls are widespread in all provinces of Turkey. According to NGO reports, the intermediaries for the ‘marketing’ of Syrian women and very young girls are easily found around the camps as well as on social media (Association for Human Rights and Solidarity with the Oppressed 2014; Centre for Middle Eastern Strategic Studies 2015).

The legal measures pertaining to early, forced and polygamous marriages are developed within the immigration legislation for dealing with the practice of these marriages among the refugee and migrant communities; the approach adopted is characterised by a conception of a ‘clash’ between Western and non-Western cultures and victimisation of ‘imperilled Muslim women’ by her own backward culture (Razack 2004, 135–150). Feminist scholarship has criticised this approach and highlighted that forced, early or polygamous marriages are based upon imbalances concerning gender and sexuality rather than simply being a reflection of culture (Dauvergne and Millbank 2010, 57–67). Such scholarship argues that the answer lies in the commitment to ensure women’s sexual and social agency (Razack 2004, 162) and demonstrates that otherwise the legal measures for the prevention and prohibition of forced and polygamous marriages create profound negative consequences for the immigrant women that they purport to protect (Eichenberger 2012, 1085 and 1110).

Turkey’s Civil Code does not permit polygamy and the minimum legal age for marriage is 17.⁸ Article 104 of the Penal Code provides that sexual intercourse with a child between the age of 15 and 18 is a crime punished with imprisonment upon complaint. If an offender has sexually abused a child under the age of 15 or if sexual intercourse with a child aged between 15 and 18 is performed by force, threat, fraud or under any other circumstances that undermine the child’s will, the perpetrator will be punished for child molestation under Article 103 of the Penal Code. This crime is prosecuted ex-officio by the prosecutor on the information received from various sources. Prosecution can be commenced in the absence of a complaint.

Forced, polygamous and child marriages are patriarchal practices commonly shared by Turkish and Syrian societies. Polygamy is legal in Syria. Syrian law gives judges the right to prohibit men from taking second (or subsequent) wives if they deem the man to be incapable of providing adequate financial support (Freedom House 2010). According to a 2005 survey, approximately 9 % of urban and 16.3 % of rural men have at least two wives (United Nations Development Fund for Women 2005). The legal age of marriage in Syria is 17 years for women and 18 years for men, but judges may authorise marriages at younger ages as low as 13 years for girls and 15 years for boys (Freedom House 2010). It is reported that 17.7 % of girls are married before the age of 18 (Organisation for Economic Co-operation and Development 2014). According to official statistics, the polygamy rate in Turkey is 3.5 and 23 % of women in Turkey marry before the age of 18 [Yılmaz et al. 2015, 222; United Nations Population Fund (UNFPA) 2014]. Polygamous and child marriages are legally prohibited but still socially accepted in many regions of Turkey. Legal measures are ineffective or in many cases are not implemented. The arrival of Syrian refugees in Turkey, and the fact that that children and women represent almost 80 % of them, greatly extends these already existing practices of child, forced and polygamous marriages.

Cases of marriages with Syrian girls aged as young as 12 and with Syrian women as the second or third wife of a Turkish national are reported in different research reports⁹ (International Crisis Group 2014). According to NGO reports as well as news in the media, these marriages are carried out in exchange for money paid to the refugee’s family; in some cases the woman or child is given as payment for the rental of the room in which the refugee family lives (BBC Türkçe 2013; Milliyet 2014b; Cumhuriyet 2015).

According to the Turkish Statistical Institute, ‘Syrian brides’ took first place among foreign brides in Turkey in 2015; 19 % of foreign women married to Turkish men are Syrian¹⁰ (Turkish Statistical Institute 2015). These numbers indicate official marriages and they represent only the tip of the iceberg. Due to the abovementioned prohibitions of the Civil Code, under Turkish law child marriages and polygamous marriages with Syrian women and girls are not official marriages, but are legally prohibited partnerships that are religiously officiated by imams (Centre for Middle Eastern Strategic Studies 2015; International Rescue Committee 2014, 12). In Turkey, before the influx of Syrian refugees, child marriages have been considered as a significant problem (Gök 2016; Yüksel-Kaptanoğlu et al. 2014). However this phenomenon has become incredibly widespread with the arrival of the Syrian refugees. It is reported that the economic issues which Syrian refugees have faced in Turkey have resulted in families who wouldn’t usually have considered child marriage, using it as a way to reduce household expenditure (CARE 2015). Turkish newspapers frequently cover cases of very young Syrian children who are sold by their own families or through the catalogues (Taraf 2014; Habertürk 2015).

The exact number of child or polygamous marriages with Syrian refugees in Turkey is unknown. Women’s organisations report that hundreds of Syrian women have been taken as second or third wives in each town on Turkey’s border region with Syria (Kutlu 2015, 12). Public officials in the camps are involved in the ‘trading networks’ of Syrian women and girls, and the imams who conduct the religious marriage ceremonies are state employees (Association for Human Rights and Solidarity with the Oppressed 2014, 33–36). However, the legal measures taken by the government against these actions, which are considered crimes under Turkey’s law, are unknown.

The issue of the sexual abuse of Syrian women and girls has been repeatedly raised in Turkey’s National Assembly. Several propositions for parliamentary inquiry have been made,¹¹ and written parliamentary questions have requested information on the measures taken by the ministries responsible for preventing the abuse of Syrian female refugees and for punishing the perpetrators.¹² All propositions for parliamentary inquiries on this issue have been rejected by the vote of MPs of the ruling Justice and Development Party, and the parliamentary questions are rarely answered.

The only answer from the government to a parliamentary question concerning the sexual abuse of Syrian female refugees demonstrated that the relevant ministries are completely unconcerned about this phenomenon. This answer came from the Minister of Family and Social Policy to a parliamentary question asking what measures had been taken by the Ministry to prevent the selling of Syrian women and girls and their abuse as sex and house workers.¹³ The Minister explained that the only measure taken by the Ministry was the implementation of a joint project with the United Nations Development Programme (UNDP) to ‘educate’ 400 Syrian women about the legal age of marriage in Turkey and about the legal prohibition of polygamy. The Deputy Prime Minister also announced this project to the press as the government’s action against the widespread sexual exploitation and selling of Syrian female refugees (Star 2014).

The government’s inaction in terms of preventing and sanctioning the trading of Syrian children and women as ‘brides’ makes possible and amplifies the domestic violence inflicted on Syrian female refugees as forced sex and house workers. On the other hand, the government’s tacit approval of these partnerships does not provide legal recognition for these religious marriages and legal rights for Syrian children or second wives. Ultimately, the law reinforces the abusive dynamics governing relationships between male Turkish nationals and female Syrian refugees, generating the precariousness of Syrian female refugees’ lives as unpaid house and sex workers who become targets of different kinds of domestic violence.

Law Creates Conditions for Economic Violence in the Labour Market

Saskia Sassen used the concept of the ‘feminisation of survival’ to refer to the fact that within the alternative cross-border circuits of profit-making in developing countries, households and entire communities are increasingly dependent on women for their survival. She emphasised that in this context female immigrants emerge as servants in strategic sectors in shadow economic activities (Sassen 2000, 505–510).

Women and children represent over two-thirds of Syrian refugees in Turkey, and according to an official report the largest age group among Syrian women is the 19–54 age group, a group considered ‘able to participate to the workforce’ (Prime Ministry Disaster and Emergency Management Authority 2014). Official numbers indicate that almost one-third of the Syrian refugee households in Turkey are headed by women or children (ibid.). Consequently the burden of finding paid work falls on women and most Syrian refugee households are dependent on women’s work and earnings for survival (Jessen 2013, 16). It is important to emphasise that not only do these female refugees carry the responsibility for the survival of their family, but they also emerge as a significant resource for Turkey’s economy.

The Temporary Protection Regulation is explicitly liberal with its terminology and does not provide ‘rights’ but rather regulates ‘access to services’. Concerning ‘access to the labour market’, Article 29 of the Regulation indicates that the procedures and principles concerning the work of persons under temporary protection will be determined by the Ministry of Labour and Social Security after the proposal by the Council of Ministers, with specific restrictions based on geography and sector. The Council of Ministers took no decision on this issue until 2016; “Regulation on Work Permit of Refugees Under Temporary Protection” was issued on 15 January 2016. This Regulation covers Syrians who have completed their registration procedure and it provides that they will be able to apply for a work permit 6 months after they obtain a temporary protection status. The impact of the Regulation is evaluated below.

Legal inaction constitutes a powerful method of imposing legal violence. The extended legal limbo concerning the conditions for employment for over two millions Syrian refugees in Turkey should be examined within this perspective. The government of Turkey prevented Syrian refugees from applying for international protection as well as for other legal statuses to which they are eligible under the new Turkish law, and kept them under the regime of temporary protection. On the other hand it did not enact any regulation concerning the legal conditions for their employment within this temporary protection regime. This inaction by the government secured Syrian refugees as flexible and exploitable labour for Turkey’s market.

Ensuring and increasing the flexibility of the labour market is one of the primary goals declared in Turkey’s National Economic Development Plan (Republic of Turkey Ministry of Development 2014) as well as in the National Employment Strategy (Republic of Turkey Ministry of Labour and Social Security 2014). As Calavita points out, economies with an emphasis on flexibility derive substantial benefits from marginalised immigrants and refugees; “law is a pivotal factor in shoring up the economic flexibility that is a welcome by-product of the marginalization” of refugees; “the production and reproduction of illegality through law enhances the precariousness of those who are thereby illegalized” (Calavita 1998, 556 and 561).

In Turkey the rate of female participation in the labour force stands at just 27 %, and state policies for increasing women’s employment rate are primarily discussed on the basis of the ‘flexibilisation’ of the labour market (Women’s Labour and Employment Initiative 2014). Migrant women are one of the groups most vulnerable to the risks of Turkey’s deepening neoliberal restructuring and its flexible labour market. The ground of both economic and legal fronts create the ‘violence of uncertainty’ for them (Eder 2015, 141–148).

The ambiguous legal status of Syrian refugees responds perfectly to the demand for precarious and informal workers; they are overwhelmingly employed informally (Del Carpio and Wagner 2015, 28) and since they don’t have work permits they are used as illegal and cheap labor (Center for Middle Eastern Strategic Studies 2015, 17–19; Amnesty International 2014, 25–27). Some commentators indicate that “Syrians have become the new working class in Turkey” (Jessen 2013, 16).

The concept of ‘unfree labour’ is used to describe migrant workers who are not free to circulate in the country or between sectors in the labour market. Scholars have drawn attention to the fact that unfree migrant workers help to lower labour standards and assist in introducing more flexible employment practices (Barrientos et al. 2013, 1037–1041; Lewis et al. 2015; Fudge 2012, 95). Turkey’s Council of Ministers sought to specify the sectors and regions of the country where the Syrian exploitable workforce will be deployed. Disagreements between different sector representatives active in the same city or region regarding whether to accept Syrian refugees or prohibit their entry to that locality are often reflected in the media. A variety of arguments could be seen, from those based on unemployment statistics to discourses that present Syrian refugees as a disturbance for western tourists visiting Turkey.

The Regulation on Work Permit of Refugees under Temporary Protection issued in January 2016 covers Syrians who have completed their registration procedure. Article 5 provides that they will be able to apply for a work permit 6 months after they obtain a temporary protection status, but the work permit is not required in part-time seasonal jobs in agriculture. Article 8 imposes a quota; the number of refugees holding a work permit must not exceed 10 % of the total number of employees at any workplace. The regulation stipulates that the persons under temporary protection will not be paid below the minimum wage. According to Article 7, the Ministry of Interior can establish geographical limitations; in the provinces notified by the Interior Ministry as objectionable for public order and security or public health reasons, the Labour Ministry will cease to issue work permits to Syrian refugees.

It is expected that the new Regulation will lead to a rise of supply in the number of Syrian refugees to work in seasonal agricultural production in coming years. However some reports estimate that the Regulation risks impacting negatively on Syrian refugees. It is noted that there is a room for employers to take advantage of struggling Syrians by demanding unofficial fees for employment applications, or by underpaying Syrians who are desperate enough not to complain about the violation of the Regulation (Refugee International 2016, 4). Another report points out that the Regulation’s piecemeal approach to regularising Syrian workers without the formalisation of entire sectors or the regularisation of all migrant workers cannot benefit Syrian refugees, but it risks increasing the unemployment of Syrians in low wage and in informal sectors as other, cheaper workers of different nationalities are hired (Shadow Report 2016, 3).

There are particular concerns that the Regulation would not have any positive impact for Syrian refugees employed in small enterprises. It is noted that small enterprises will be less able to offer the work permit sponsorship and may well continue to rely upon informal workers, including Syrians (Refugee International 2016, 5). Should small-sized enterprise owners want to conform the Regulation, the quota requirement will have negative implications for Syrian refugees that they employ (Refugee International 2016, 5).

Time is needed to see the Regulation’s repercussions on the life of Syrian female refugees. Meanwhile they work in agriculture, textile, tourism, domestic and sex servicing sectors, yet their work goes unrecorded with extremely low wages (Association for Human Rights and Solidarity with the Oppressed 2014, 42). Most of them live in extreme poverty.¹⁴ Reports indicate that Syrian child labour is spreading in Turkey (United States Department of Labor 2014, 876; Center for Middle Eastern Strategic Studies 2015, 17) in breach of Turkey’s legislation.¹⁵ Neither the municipal authorities nor the Ministry of Labour and Social Security is taking any measures to address the exploitation of Syrian women and children’s labour.

Law Generates Constant Fear of Physical Enclosure: Camp as a Prison

The Turkish government creates the necessary conditions for other actors to inflict physical, sexual or economical violence on female Syrian refugees, but these refugees rarely face direct violence from Turkish security forces. The only occasion on which female Syrian refugees are subject to physical violence by the security forces is when they beg on the streets. According to Turkish legislation, begging is not a crime but a misdemeanour that is sanctioned with an administrative fine imposed by the municipal authorities.¹⁶ The Penal Code does not provide a penalty of imprisonment for beggars, except for those who use children or persons who lack mental capacity in begging. There is therefore no legal base for imposing penalties to restrict the liberty of beggars.

Large numbers of Syrian refugees are engaged in begging in almost every city of Turkey. Most Syrian refugees work excessive hours and receive significantly lower wages than their Turkish counterparts, and their meagre wages are very often unfairly withheld altogether (Amnesty International 2014, 25–27). Consequently, begging seems to be a more eligible ‘job’ for many Syrian refugees in their daily struggle for survival.

Official authorities consider Syrian beggars as a security concern, disturbing Turkey’s citizens as well as tourists visiting the country. Starting from 2013 the Ministry of the Interior has issued several directives asking the governorships of all provinces to take security measures to prevent Syrians from begging on the streets and to send them to camps by force.¹⁷ The governorships in their turn issued governorship directives in order to implement the order of the Ministry. There are also Turkish nationals begging on the streets, but these directives sanction only Syrian beggars, who are considered by the Ministry to be a ‘disturbance to public order’.

During 2014, 2015 and 2016, reports of Syrian refugees who were accused of begging being detained and forcibly transferred to camps appeared in local and national media almost every day, described as an ‘operation’ or ‘struggle’ against ‘Syrian beggars’ (Aktif Medya 2015; Hürriyet 2016). The ‘policy of placement of beggars in camps’ is applauded by some academics for its ‘evident results’ (Erdoğan 2014, 22). The newspaper articles limit their focus to the successes of the operations against Syrian beggars, while the latter’s vulnerability is largely absent in the literature (Peyroux 2015, 31–32). It seems that each governorship carries out these ‘operations’ at its own discretion and by different means. Some governorships’ directives are accompanied by a formal notification document. The police first communicate this written notification, prepared in Turkish and in Arabic, that should be signed by the Syrian refugee engaged in beggary. This notification informs the refugee that beggary is a misdemeanour according to Turkish legislation and in case the concerned person continues begging, necessary administrative measures will be taken. He/she will be transferred to the camp only after his/her second apprehension for begging.¹⁸ Some governorship directives provide necessary measures for sending not only the Syrian beggar but also his/her entire family to the camps.¹⁹

Article 35 of the Temporary Protection Regulation provides that if persons under temporary protection fail to comply with the obligations prescribed in the Regulation²⁰ they can be temporarily or permanently prevented from living outside the temporary accommodation centres (camps). In this way the Regulation designates the camps as prisons for Syrian refugees. Amnesty International researchers reported that they have visited some accommodation centres during 2015, where hundreds of Syrian refugees were held including women and children. Turkish authorities told Amnesty International that “the people who were ‘accommodated’ were those who were ‘homeless or engaged in begging’” (Amnesty International 2015, 9). They confirmed that refugees “were brought to the camp on the basis of a decision by the authorities, rather than of their own will, they were not permitted to leave the camp” (Amnesty International 2015, 9).

It has to be noted that in their current state the temporary accommodation centres, publicly known as camps, are unsafe places for women in particular. Incidents of rape in these camps have been reported in the Turkish media, and according to testimonies in these reports some of the perpetrators were camp officials (Milliyet 2014a; Agos 2014). The issue of the sexual abuse of Syrian women and girls in camps and by camp officials has also been raised in a parliamentary question to the Minister of the Interior, but has not received any answer.²¹

The determined and selective punitive action that exclusively targets Syrian refugees who survive by begging is striking. The ‘struggle’ against Syrian beggars and their punitive confinement in camps could be analysed as an instrumental strategy for contributing to the reproduction of a vulnerable labour force suited to a de-regulated neoliberal economy. There is a literature that makes use of the neo-Marxist criminological perspective known as the ‘political economy of punishment’ to deconstruct the punitive strategies that shape immigration laws (Melossi 2003). It analyses the rationality of penal practices for forcing the poor to prefer any available condition of work rather than incur the sanctions attached to the refusal of work. As vagrancy and begging is the refusal to work in the given conditions, their criminalisation plays an important role in the political economy of punishment of the migrants (Melossi 2003; Calavita 2003; De Giorgi 2010). Although the feminisation of migration is a major global trend (Freedman 2015, 12–14) this literature does not thematise gender.

Women and children represent the overwhelming majority of Syrian beggars. The forced confinement of Syrian refugees in camps for begging constitutes a powerful instrument for the disciplinary regulation of female Syrian refugees who are granted no rights. They are, as the most vulnerable labour force of Turkey, forced by insecurity or their legal status to accept virtually any degree of exploitation in the flexible labour markets, since it is preferable to detention and deportation to the camps. The perpetual insecurity and possibility of being deported to the camps makes them subject to capitalist control.

Before the Law on Foreigners and International Protection entered into force, the detention of migrants and refugees in so-called ‘foreigners’ guesthouses’ was a common practice in Turkey. This detention was officially known as ‘administrative supervision’ and was not based on a court decision but on an administrative ruling from the Ministry of the Interior. The European Court of Human Rights (ECtHR) ruled that the placement in the foreigners’ guesthouses amounts to detention²² and that this detention has no legal basis.²³ The Court has also reiterated that there is no judicial review hence no adequate safeguards against arbitrariness of the detention.²⁴ The Court condemned Turkey because the grounds for detention has not communicated to the detainees. It also denounced that the national legislation does not fix any time limit for detention nor provide any remedies to annul the deportation order.²⁵ UNHCR’s access to detained individuals has been subject to approval by the Ministry of Foreign Affairs and Ministry of Interior. Commentators pointed out that the administrative detention is used as a formal deterrent by the state on the potential applicant’s access to refugee status determination interviews by UNHCR (Soykan 2012, 40–44). Although under Turkish law the detained persons may claim asylum from there, in practice they seem to face severe obstacles (Kıvılcım 2014, 136–137). The Report by the Human Rights Commission of the Grand National Assembly of Turkey on the foreigners’ guesthouses indicates that the right of access to an asylum procedure for detainees is largely denied, due to a lack of information on this possibility and on the asylum procedure, refusal of police officers to take applications and absence of interpreters (Grand National Assembly Human Rights Commission 2010).

The Report by Council of Europe Commissioner for Human Rights emphasises that detention periods range from less than a week to more than a year, the average length of detention being currently 2 months.²⁶ Children are kept in detention together with their parents which is in contradiction of the prohibition on detaining children with adults provided by the UN Convention of the Rights of the Child²⁷ and established by the jurisprudence of the ECtHR.²⁸ Access to both UNHCR and lawyers has been granted only on occasions to persons in detention in foreigners’ guest-houses. It constituted a breach of right to fair trial condemned by ECtHR decisions.²⁹

In light of the ECtHR decisions, the provisions of the new Temporary Protection Regulation that enable administrative authorities to forcibly place persons in temporary accommodation centres and prevent them from living outside of these centres amounts to detention. The fact that these persons are held in the centres without any court ruling but according to a decision made by the administrative authority is in breach of the principles outlined by the ECtHR.

The determination of the Turkish government to continue with the administrative confinement of migrants could be explained by the flexibility that this action provides compared with the rigidity of criminal proceedings. The administrative authority decides on confinement with no legal basis; the time limit is not fixed; the place of detention, i.e. the camp to which the Syrian refugee accused of begging will be sent, is arbitrarily decided by the governorship taking action; and the refugee is deprived of the rights guaranteed by the national penal legislation for the accused in criminal proceedings.

The recent report by Amnesty International demonstrates that Turkish authorities make use of this ‘administrative flexibility’. The report indicates that starting from September 2015 an increasing number of Syrian refugees, including children, were apprehended, transferred and kept in camps and removal centres (Amnesty International 2015). These detained refugees don’t have access to their lawyers or families, they are not informed about the reasons for their detention, young children are held with adults and there are cases of ill treatment (Amnesty International 2015).

Conclusion

In this article, I have argued that Syrian female refugees are targeted by various and mutually reinforcing forms of violence conditioned by Turkish legislation. I showed that the temporary protection regime is the main determinant framework for the administration of legal violence by different actors, since it outlaws the Syrian refugees in an enclave where the Turkish government suspends the validity of its legislation, including its Constitution that could provide protection for Syrian female refugees.

In many cases it is legal inaction that leaves these refugees exposed to violent abuse by different actors. Prosecutors are inactive and refrain from investigating the widespread crimes of the marketing of Syrian women and girls and of the exploitation of their physical and sexual labour as forced sexual and house workers. This inaction is supported and encouraged by the inaction of the government, which is taking no measures on these issues. No authority takes any action for implementing the provisions of the Labour Code that prohibit child labour and sanction wage discrimination against Syrian refugees. The public authorities intervene only in cases when refugees refuse to work under these conditions and engage in begging, by forcibly sending them to the camps.

The temporary protection regime manifests as a domain operated arbitrarily by executive actors where the rules are determined not only according to the necessities of the changing policy of the Turkish government towards Syria, but also on the demands of the Turkish market asking for a more flexible labour force. Since the stay of Syrian refugees in Turkey depends on the sole discretion of the government, their future is also vulnerable to domestic political upheavals. Unlike the EU-Turkey Agreement assumes, Turkey is not a ‘safe’ country for Syrian female refugees.