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For a United and Independent Kurdistan

The war for Kurdistan and the International Humanitarian Law

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Many articles on Kurds (of Kurds or others) start with a justification of  “why the Kurds have the right to fight; that the Kurdish land has been inherited from their ancestors, that they form a majority on their land and that they are under oppression of regimes that deny their very rights of  ‘being'”.

It is in the recent years that the articles on Kurds changed in nature. More expert articles are produced on various topics. One point, however, is weakly emphasized within the Kurdish and the international community, which is the definition of the war going on in Kurdistan according to International Law and the necessary obligations such a definition brings to the parties engaged in the conflict in Kurdistan.

Two main international conventions set the rules that oblige the state and non-state parties to abide with: Geneva Conventions and Hague Conventions. Together with subsequent treaties, case law, and customary international law, these conventions form the International Humanitarian Law (link).

International Humanitarian Law (IHL) is a set of rules which seek, for humanitarian reasons, to limit the effects of armed conflict. It protects persons who are not or are no longer participating in the hostilities and restricts the means and methods of warfare. (link)

It is mainly due to lack of knowledge of Kurds and lack of institutions to follow the war in Kurdistan, many actions of the oppressive regimes in Kurdistan have gone unseen.

In a war all tactics and stratagems are a part of the ‘game’. The winner and loser are defined by their own terms. Developing diplomacy skills, preparing assaults your opponents are not prepared to, etc. are all part of this game of war. There are actors who oppose wars and there others who define -in their own terms- wars that are ‘justified’. None changes the fact that “there always have been customary practices in war”. Kurds have been one of the most naive nations when it comes to wars.

Modern warfare has brought with it a set of rules that oblige the parties to the warfare to abide with. As mentioned, these set of rules are mainly the Geneva Conventions and the Hague Conventions. There is not a piece of land on earth where parties to a conflict are not obliged by these.

In where International Humanitarian Law (IHL) does not apply, International Human Rights Law (IHRL) applies:

Both international humanitarian law (IHL) and international human rights law (IHRL) strive to protect the lives, health and dignity of individuals, albeit from a different angle. It is therefore not surprising that, while very different in formulation, the essence of some of the rules is similar, if not identical. For example, the two bodies of law aim to protect human life, prohibit torture or cruel treatment, prescribe basic rights for persons subject to a criminal justice process, prohibit discrimination, comprise provisions for the protection of women and children, regulate aspects of the right to food and health. On the other hand, rules of IHL deal with many issues that are outside the purview of IHRL, such as the conduct of hostilities, combatant and prisoner of war status and the protection of the red cross and red crescent emblems. Similarly, IHRL deals with aspects of life in peacetime that are not regulated by IHL, such as freedom of the press, the right to assembly, to vote and to strike. (Link)

Is the Kurdish cause limited to “freedom of press, the right to assembly, to vote and to strike”? Is that the extent of the nature of the war going on in Kurdistan? Of course not and one does not need an expert opinion to see it so. However, lack of expert opinions in case of the war in Kurdistan has been a major faiblesse of the struggle for Kurdistan, Kurdish independence.

Kurds have long suffered and continue to suffer under states that simply do not feel obliged by these rules. In case of Turkey, where according to Geneva Conventions a clear non-international armed conflict (NIAC) continues between the state forces and the PKK, by refusing that there is a conflict, the state simply denies the rights of Prisoners of War (POW) to PKK fighters and many other obligations these conventions bring.

There are hostilities going in all over Kurdistan. Kurdish political parties, mainly PKK today, engage in open armed conflict with states of Turkey, Syria and Iran. In many instances armed troops of the PKK and the states fighting against the PKK visibly organize cross border operations. What is missing is the recognition of this war by the international community.

Not that there are no efforts for this. Perhaps the most important piece of work on this is the one of Kerim Yildiz and Susan Breau: The Kurdish Conflict: International Humanitarian Law and Post-Conflict Mechanisms.

This book is a groundbreaking analysis of the on-going conflict waged by the Kurdistan Workers Party (PKK) in southeastern Turkey and its spill over into northern Iraq in terms of the international law of war (jus in bello or international humanitarian law) and the use of force (jus ad bellum).

their analysis is divide
d into two parts. Part I concerns the international law of armed conflict as applied to the Kurdish struggle, while Part II delves into some potential legal and political solutions. Upon analyzing the relevant literature and treaties, the opening chapter of Part I concludes “on a factual basis in spite of the denial of Turkey” (p. 58) that the complex conflict in southeast Turkey, which also spills over into northern Iraq, constitutes a non-international armed conflict. Thus, “it can be argued that a whole range of humanitarian guarantees are offered to both civilians and combatants” (p. 88) by such means as the Hague Regulations of 1907 as well as the Geneva Conventions of 1949 with their Common Article 3 that provides limited protections for civilians and members of armed forces hors de combat. (link)

Based on ordinary knowledge of the mentioned conventions, the aim of this article is to:

  1. Bringing to the attention of Kurdish political organizations the fact that their fighters have more rights according to the mentioned conventions; that the states they are engaged in war / conflict have certain clear obligations that are not respected.
  2. Inviting the international community, (mainly the ICRC, the organization which, by the Geneva Conventions, mandated) to ensure that the states engaged in hostilities with well organized Kurdish military organizations to respect the mentioned laws. (ICRC’s hypocrisy in not mentioning the hostility between the Turkish State and the PKK in Iraqi soils is worth mentioning in bold (link))

Following are taken from a study published on the ICRC’s website, titled “The protective scope of  Common Article 3: more than meets the eye”, written by Jelena Pejic (link).

(The bolds and italics are of mine)

it is widely accepted that non-international armed conflicts governed by Common Article 3 are those waged between state armed forces and non-state armed groups or between such groups themselves. IHL treaty law allows a distinction to be made between NIACs within the meaning of Common Article 3 and those meeting the higher, Additional Protocol II, threshold.

At least two criteria are considered indispensable for classifying a situation of violence as a Common Article 3 armed conflict, thus distinguishing it from internal disturbances or tensions that remain below the threshold.

The first is the existence of parties to the conflict. Common Article 3 expressly refers to ‘each Party to the conflict’, thereby implying that a precondition for its application is the existence of at least two ‘parties’. While it is usually not difficult to establish whether a state party exists, determining whether a non-state armed group may be said to constitute a ‘party’ for the purposes of Common Article 3 can be complicated, mainly because of lack of clarity as to the precise facts and, on occasion, because of the political unwillingness of governments to acknowledge that they are involved in a NIAC. Nevertheless, it is widely recognized that a non-state party to a NIAC means an armed group with a certain level of organization that would essentially enable it to implement international humanitarian law.International jurisprudence has developed indicative factors on the basis of which the ‘organization’ criterion may be assessed. They include the existence of a command structure and disciplinary rules and mechanisms within the armed group; the existence of headquarters; the ability to procure, transport, and distribute arms; the group’s ability to plan, co-ordinate, and carry out military operations, including troop movements and logistics; its ability to negotiate and conclude agreements such as ceasefire or peace accords; and so forth.Put differently, even if the level of violence in a given situation is very high (in a situation of mass riots, for example), unless there is an organized armed group on the other side, one cannot speak of a non-international armed conflict.

The second criterion commonly used to determine the existence of a Common Article 3 armed conflict is the intensity of the violence involved. This is also a factual criterion, the assessment of which depends on an examination of events on the ground. Pursuant to international jurisprudence, indicative factors for assessment include:

the number, duration and intensity of individual confrontations, the type of weapons and other military equipment used, the number and calibre of munitions fired, the number of persons and types of forces partaking in the fighting, the number of casualties, the extent of material destruction, and the number of civilians fleeing combat zones. The involvement of the UN Security Council may also be a reflection of the intensity of a conflict.

certain NIACs originating within the territory of a single state between government armed forces and one or more organized armed groups have also been known to ‘spill over’ into the territory of neighbouring states. Leaving aside other legal issues that may be raised by the incursion of foreign armed forces into neighbouring territory (violations of sovereignty and possible reactions of the armed forces of the adjacent state that could turn the fighting into an international armed conflict), it is submitted that the relations between parties whose conflict has spilled over remain at a minimum governed by Common Article 3 and customary IHL. This position is based on the understanding that the spill over of a non-international armed conflict into adjacent territory cannot have the effect of absolving the parties of their IHL obligations simply because an international border has been crossed. The ensuing legal vacuum would deprive of protection both civilians potentially affected by the fighting and persons who fall into enemy hands.

It is ironic that the ICRC can define what very well suits the conflict going on between Turkey, Iran, Syria and the PKK but not find it worth even being mentioned.

Is there more than that meets the eye?

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Written by M. Husedin

29 September 2012 at 11:28 AM

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