The Kurdish Conﬂict

This book is highly topical considering the recent resurgence of violence by the
PKK, the incursions into Northern Iraq by the Turkish army and security forces
and Turkey’s EU accession negotiations. Turkey has become an increasingly
important player in Middle Eastern geopolitics. More than two decades of serious
conﬂict in Turkey are proving to be a barrier to improved relations between
Turkey and the EU. This book is the ﬁrst study to address fully the legal andpolitical dimensions of the conﬂict, and their impact on mechanisms for conﬂict
resolution in the region, oﬀering a scholarly exploration of a debate that is often
politically and emotionally highly charged.
Kerim Yildiz and Susan Breau look at the practical application of the law ofarmed conﬂicts to the ongoing situation in Turkey and Northern Iraq. The
application of the law in this region also means addressing larger questions ininternational law, global politics and conﬂict resolution. Examples include belligerency in international law, whether the ‘war on terror’ has resulted in changes
to the law of armed conﬂict and terrorism and conﬂict resolution.
The Kurdish Conﬂict explores the practical possibilities of conﬂict resolution in
the region, examining the political dynamics of the region, and suggesting where
lessons can be drawn from other peace processes, such as in Northern Ireland.
This book will be of great value to policy-makers, regional experts, and others
interested in international humanitarian law and conﬂict resolution.
Kerim Yildiz is the founder and Executive Director of the Kurdish Human
Rights Project (KHRP) and is a recognised expert on the Kurdish regions.
Susan Breau is Professor of International Law at Flinders University, Adelaide,
Australia and is well-regarded for her work in the ﬁeld of the law of armed conﬂict and international human rights law.

The Kurdish Conﬂict
International Humanitarian Law andPost-Conﬂict Mechanisms

Kerim Yildiz
and Susan BreauFirst published 2010 by Routledge
2 Park Square, Milton Park, Abingdon, Oxon, OX14 4RN
Simultaneously published in the USA and Canada
by Routledge
270 Madison Avenue, New York, NY 10016
Routledge is an imprint of the Taylor & Francis Group, an informa business© 2010 Kerim Yildiz and Susan Breau
Typeset in Baskerville by Taylor & Francis Books
Printed and bound in Great Britain by CPI Antony Rowe,
Chippenham, Wiltshire
All rights reserved. No part of this book may be reprinted or reproduced
or utilised in any form or by any electronic, mechanical, or other means,
now known or hereafter invented, including photocopying and recording,or in any information storage or retrieval system, without permission inwriting from the publishers.
British Library Cataloguing in Publication Data
A catalogue record for this book is available from the British Library
Library of Congress Cataloging in Publication Data
The Kurdish conﬂict : international humanitarian law and post-conﬂict
mechanisms / Kerim Yildiz and Susan Breau.
p. cm.
Includes bibliographical references.
ISBN 978-0-415-56270-6 – ISBN 978-0-415-56273-7 –ISBN 978-0-203-84933-0 1. Self-determination, National – Kurdistan.
2. Humanitarian law – Kurdistan. 3. Kurds – Legal status, laws, etc.
4. Kurdistan – International status. 5. Kurds – Legal status, laws, etc. –Turkey. I. Breau, Susan Carolyn, 1955-II. Title.
KZ4272.Y55 2010
341.6’709566’7 – dc22
2009051457
ISBN10: 0-415-56270-8 (hbk)
ISBN13: 978-0-415-56270-6 (hbk)
ISBN10: 0-415-56273-2 (pbk)
ISBN13: 978-0-415-56273-7 (pbk)
ISBN10: 0-203-84933-7 (ebk)
ISBN13: 978-0-203-84933-0 (ebk)To Bridget and Dara
To my dear friends and inspirational colleagues IndiraCarr, Agnieszka Jachec-Neale and Amrita Mukherjee

Contents

Table of cases
Table of treaties
Foreword by Professor Kader Asmal
Foreword by Helena Kennedy and Mark Muller
Acknowledgements
Introduction

ix
xv
xix
xxi
xxii
1

1. Historical background4

PART 129

2. The international law of armed conﬂict

31

3. Common Article 3, customary international humanitarianlaw, and human rights law applicable to the conﬂict insoutheast Turkey

59

4. Belligerents

90

5. The international law of armed conﬂict – jus ad bellum

116

6. Terrorism, the law of armed conﬂict and the PKK

139

PART 2167

7. Terrorism: historical engagement and the global
war on terror

169

8. Self-determination: models for a political solution

199

9. International humanitarian law: recognition of the conﬂict asa basis for constructive political dialogue and peace-building

227

viii

Contents

Notes
Appendix 1: Provisions in Geneva Convention III respecting theclassiﬁcation of prisoners of war
Appendix 2: Terrorism Conventions
Appendix 3: The Mitchell Principles
Bibliography
Index

273
330
333
340
341
348

Table of cases

International Court of JusticeApplication of the Convention on the Prevention and Punishment of
the Crime of Genocide (Bosnia and Herzegovina v Yugoslavia),
Order of 8 April 1993, [1993] ICJ Reports 3 ............................................ 298
Application of the Convention on the Prevention and Punishmentof the Crime of Genocide, Preliminary Objections [1996]
ICJ Reports 595 ........................................................................................... 298
Armed Activities on the Territory of the Congo (Democratic Republicof the Congo v Uganda), Judgment of 19 December 2005, [2005]
ICJ Reports 168 .................................................................. 284, 295, 297, 317
Barcelona Traction Light and Power Company Limited(Belgium v Spain), 2nd Phase, 6 February 1970, [1970]
ICJ Reports 3 ....................................................................................... 136, 298Case Concerning East Timor (Portugal v Australia),
Judgment of 30 June 1995, [1995] ICJ Reports 90 ........... 136, 208, 298, 313
Legal Consequences for States of the Continued Presence of South Africa
in Namibia (South West Africa) Notwithstanding Security
Council Resolution 276 (1970), Advisory Opinion, [1971]
ICJ Reports 12 ............................................................ 136, 205, 298, 312, 313
Legal Consequences of the Construction of a Wall in the Occupied
Palestinian Territory, Advisory Opinion of 9 July 2004, [2004]
ICJ Reports 136 .................. 57, 130, 208, 209, 260, 286, 295, 297, 313, 327
Legality of the threat or use of nuclear weapons advisory opinion,
Advisory Opinion of 8 July 1996, [1996] ICJ Reports 66 ................. 286, 289
Military and paramilitary activities in and against Nicaragua (Nicaragua v
United States of America), Merits, Judgment of
27 June 1986, [1986] ICJ Reports 14 ............................... 37, 39, 40, 44, 60,
124, 127, 129, 131, 133, 283–286, 295, 296
Oil Platforms (Islamic Republic of Iran v United States of America),
Judgment of 6 November 2003, [2003] ICJ Reports 161 .................. 296, 297
The Corfu Channel Case (Merits), Judgment of 9 April 1949, [1949]
ICJ Reports 4 ............................................................................................... 296

xTable of cases

Western Sahara, Advisory Opinion of 16 October 1975, [1975]
ICJ Reports 12 ..................................................................................... 209, 313

International Criminal Tribunal for Rwanda
Prosecutor v Akayesu, Judgment of Trial Chamber,
2 September 1998, ICTR-96-4-T ................................................ 61, 287, 292

International Criminal Tribunal for the former
Yugoslavia
Prosecutor v Tadić, Decision on the Defence Motion for Interlocutory
Appeal on Jurisdiction, Appeals Chamber, 2 October 1995,
IT-94-1-AR72 ................................ 34, 45, 61, 76, 78, 79, 283, 285, 287, 293
Prosecutor v Tadić, Appeals Chamber, Judgment of
15 July 1999, IT-94-1-A ............................................................... 40, 284, 290

International Criminal Court
Prosecutor v Germain Katanga and Mathieu Ngudjolo Chui, Pre-Trial
Chamber 1, Decision on the Conﬁrmation of Charges,
26 September 2008, ICC-01/04-01/07 ................................................ 40, 284
Prosecutor v Thomas Lubanga Dyilo, Decision on the Conﬁrmation ofCharges, 29 January 2007, ICC-01/04-01/06 ..................................... 40, 284
The Situation in Darfur, Sudan, The Prosecutor v Omar Hassan
Ahmed Al Bashir, Case ICC-0–2/05–01/09 .............................................. 326

International Military Tribunals post-Second
World WarInternational Military Tribunal (Nuremberg) Judgment and
Sentences, reprinted in (1947) 41 American Journal ofInternational Law 172 ................................................................... 76, 287, 290
US v List et al (The Hostages case) (US Military Tribunal)(1948) 13 Law Reports of Trials of War Criminals 62 .............................. 288

European Court/Commission of Human Rights
Abdülsamet Yaman v Turkey, Application No 32446/96,
Judgment of 2 November 2004 ........................................................... 113, 294
Acar and Others v Turkey, Application Nos 36088/97
and 38417/97, Judgment of 24 May 2005 .................................. 83, 290, 291
Akdeniz and others v Turkey, Application No 23954/94,
Judgment of 31 May 2001, [2001] ECHR 353 .......................................... 278

Table of casesxi

Akdivar and Others v Turkey, Application No 99/1995/605/693,
Judgment of 20 August 1996 ....................................................................... 291
Akdivar and others v Turkey, Application No 21893/93, Judgment of
16 September 1996, Reports of Judgments and Decisions 1996-IV .. 278, 279
Al-Adsani v United Kingdom, Application No 35763/97, Judgment of
21 November 2001, (2002) 34 EHRR 11 ........................................... 155, 301
Altun v Turkey, Application No 24561/94, Judgment of 1 June 2004 ... 85, 291
Aquilina v Malta, Application No 25642/94, ECHR 1999-III, § 49 ............ 293
Avşar and others v Turkey, Application No 25657/94, Judgment of
10 July 2001, Reports of Judgments and Decisions 2001-VII .................... 290
Aydin v Turkey, Application No 57/1996/676/866, Judgment of
25 September 1997, Reports of Judgments andDecisions 1997-VI ................................................................... 71, 87, 289, 291
Ayşe Tepe v Turkey, Application No 29422/95, Judgment of
22 July 2003 ................................................................................................. 294
Bankovic and Others v Belgium and Others, Application No 52207/99,
Admissibility Decision of 12 December 2001, (2001) 11 BHRC 435,
(2002) 41 ILM 517 ............................................................................... 155, 301
Bilgin v Turkey, Application No 23819/94, Judgment of
17 July 2001 ................................................................................................. 278
Brannigan and McBride v United Kingdom, Application Nos 1453/89
and 1453/89, Judgment of 26 May 1993, EctHR, Series A,
258-B, 55 .............................................................................................. 293, 301
Brogan and others v United Kingdom, Application Nos 11209/84,
11266/84 and 11365/85, Judgment of 29 November 1988,(1989) 11 EHRR 117 .................................................................. 113, 293, 294Çakıcı v Turkey,
Application No 23657/94, [1999] ECHR 43 .................... 278.
Çelik and Imret v Turkey, Application No 44093/98, Judgment of
26 October 2004 .......................................................................................... 113
Chahal v United Kingdom, Application No 22414/93, Judgment of
15 November 1996, (1996) 23 EHRR 413 ......................................... 153, 301
Çiçek v Turkey, Application No 25704/94, Judgment of
27 February 2001 ......................................................................................... 294
Çolak and Filizer v Turkey, Application Nos 32578/96 and32579/96, Judgment of 8 January 2004 ............................................. 114, 294
Dikme v Turkey, Application No 20869/92, Judgment of 11 July 2000,
ECHR 2000-VIII, § 66 ................................................................................ 293
Doğan and others v Turkey, Application Nos 8803-11/02, 8813/02 and8815-19/02, Judgment of 18 November 2004 ............................................ 290
Dulaş v Turkey, Application No 25801/94, Judgment of
30 January 2001 ................................................................................... 278, 291
Ergi v Turkey, Application No 40/1993/435/514, Judgment of
28 July 1998 ........................................................................................... 84, 291
Ertak v Turkey, Application No 20764/92, Judgment of 9 May 2000,
Reports of Judgments and Decisions 2000-V .............................................. 278

xii

Table of cases

Esen v Turkey, Application No 29484/95, Judgment of 22 July 2003 ......... 294
Freedom and Democracy Party (ÖZDEP) v Turkey, Application
No 23885/94, Judgment of 8 December 1999 ................................... 274, 320
Gülec v Turkey, Application No 21593/93, Judgment of. 27 July 1998 ................................................................................................. 291
Ipek v Turkey, Application No 25760/94, Judgment of
17 February 2004 ......................................................................................... 291
Ireland v United Kingdom, Application No 5310/71, Judgment of
18 January 1978, [1978] ECHR 1 ...................................................... 158, 301
Ireland v United Kingdom, (1978) 2 EHRR 25, European Court of
Human Rights ...................................................................................... 158, 301
Issa and Others v Turkey, Application No 31821/96, Judgment of
16 November 2004 ...................................................................... 261, 281, 327
Kurt v Turkey, Application No 24276/94, Judgment of
25 May 1998, (1998) 27 EHRR 373 ........................................................... 278
McCann and Others v the United Kingdom, Application No 18984/91,
Judgment of 27 September 1995, ECtHR Series A, No 32 ............... 112, 290
Menteş and others v Turkey, Application No 58/1996/677/867,
Judgment of 28 November 1997 ................................................ 278, 279, 291
Öcalan v Turkey, Application No 46221/99, Judgment of
12 March 2003 ............................................................................ 277, 289, 293
Orhan v Turkey, Application No 25656/94, Judgment of
18 June 2002 ........................................................................... 18, 84, 278, 291
Özgür Gündem v Turkey, Application No 23144/93, Judgment of
16 March 2000, ECHR 2000-III ................................................................ 275
Sadak and Others v Turkey (No 1), Application Nos 29900/96, 29901/96,
29902/96 and 29903/96, Judgment of 17 July 2001 ................................. 320
Sadak and Others v Turkey (No 2), Application Nos 25144/94,
26149/95 to 26154/95, 27100/95 and 27101/95, Judgment of
11 June 2002 ................................................................................... 9, 274, 320
Selçuk and Asker v Turkey, Application Nos 23184/94 and23185/94, Judgment of 24 April 1998 ................................................ 278, 279
Seyfettin Acar and others v Turkey, Application No 30742/03,
Judgment of 6 October 2009 ........................................................ 83, 290, 291
Socialist Party and others v Turkey, Application No 21237/93,
Judgment of 25 May 1998 ........................................................................... 274
Taniş and Others v Turkey, Application No 65899/01, 2 August 2005 ....... 278
Tanli v Turkey, Application No 26129/95, Judgment of
28 August 2001 .................................................................................... 112, 294
Taş v Turkey, Application No 24396/94, Judgment of
14 November 2000 ....................................................................................... 278
Timurtaş v Turkey, Application No 23531/94, Judgment of 13 June
2000, Reports of Judgments and Decisions 2000-VI .................................. 278
Ülke v Turkey, Application No 39437/98, Judgment of
24 January 2006 ........................................................................................... 276

Table of cases

xiii

United Communist Party v Turkey, Application No 19392/92,
Judgment of 30 January 1998 ...................................................................... 274
Yasin Ateş v Turkey, Application No 30949/96, Judgment of
31 May 2005 ........................................................................................ 111, 294
Yaz v Turkey, Application No 29485/95, Judgment of 22 July 2003 ........... 294
Yazar, Karatas, Aksoy and the Peoples’ Labour Party (HEP) v Turkey,
Application No 22723-25/93, Judgment of 9 April 2002 .......................... 274

European Court of Justice
Ahmed Ali Yusuf & Al Barakaat International Foundation v Council andCommission, Case 306/01, and Yassin Abdullah Kadi v Council of
the European Union and Commission of the European Communities,
Case T-315/01, Judgment of 3 September 2008 ............................... 162, 302
Osman Öcalan, on behalf of the Kurdistan Workers’ Party (PKK) and
Serif Vanly, on behalf of the Kurdistan National Congress (KNK) v
Council of the European Union (Öcalan), Case C-229/05P,
Judgment of the Court (First Chamber), 18 January 2007,[2007] ECR I-439 ............................................................................... 298, 302
PKK and KNK v Council of the European Community,
Case T-229/02, Judgment of 15 February 2005 ........................................ 305

Court of First Instance of the European Communities
Kongra-Gel and Others v Council of the European Union, United
Kingdom of Great Britain and Northern Ireland, Intervener,
Case T-253/04, Judgment of 03 April 2008 ............................................... 305
PKK and KNK v Council of the European Community,
Case T-229/02, Judgment of 3 April 2008 ................................................. 306

Inter-American Court of Human Rights
Juan Carlos Abella v Argentina, Case 11.137, Report No 55/97, Inter-Am
CHR, OEA/SerL/V/II.95 Doc 7 rev at 271 – 18 November 1997 .. 35, 283
Bamaca Velásquez v Guatemala, Petition No 11.129/1993, Judgment of
25 November 2000 ....................................................................................... 327

Domestic courts
A (FC) and others (FC) (Appellants) v Secretary of State for the Home
Department (Respondent), 8 December 2005, [2005] UKHL 271,
House of Lords ............................................................................................. 301
A (FC) and others (FC) (Appellants) v Secretary of State for Home
Department (Respondent), 16 December 2004, [2002] UKHL 56,
House of Lords ............................................................................................. 300

xiv

Table of cases

Abbasi and Another v Secretary of State for Foreign and CommonwealthAﬀairs, 2 February 2003, [2002] EWCA Civ 1598, Court of Appeal(England and Wales) .................................................................. 155, 156, 301
Boumediene v Bush, 12 June 2008, 549 US (2007), US Supreme
Court ..................................................................................................... 157, 301
Hamdan v Rumsfeld, 29 June 2006, 548 US 196, US Supreme Court 157, 301
Hamdi v Rumsfeld, 28 June 2004, 542 US 507 (2004),
US Supreme Court .............................................................................. 156, 301
Italy v Abdelaziz and ors, Final Appeal Judgment, No 1072, ILDC
559 (IT 2007), Court of Cassation, Italy ............................................. 300, 302
The Queen (on the Application of Mazin Mumaa Galteh Al-Skeini
and Others) v The Secretary of State for Defence, 21 December 2005,[2005] EWCA Civ 1609, Court of Appeal (England and Wales) ...... 159, 302
Rasul v Bush, 28 June 2004, 542 US 466 (2004),
US Supreme Court ..................................................................... 156, 157, 301
Reference Re Secession of Quebec Judgment, [1998]
2 SCR 217, (1998) 161 DLR 385, Supreme Court of
Canada ........................................................ 212, 214, 217, 219, 314, 315, 317
Secretary of State for the Home Department v JJ and others,
31 October 2007, [2007] UKHL 45, House of Lords ............................... 301
Secretary of State for the Home Department v MB and FC,
31 October 2007, [2007] UKHL 46, House of Lords ............................... 301
Secretary of State for the Home Department v E and another,
31 October 2007, [2007] UKHL 47, House of Lords ............................... 301
Suresh v Canada (Minister of Citizenship and Immigration), [2002]
1 SCR 3, 2002 SCC 1, Supreme Court of Canada ................................... 303

Table of treaties

1899 Hague Convention II Laws and Customs of War on Land,
The Hague ............................................................................................. 50, 292
1906 Geneva Convention for the Amelioration of the Condition of
the Wounded and Sick in Armies of the Field, 6 July 1906, 11
LNTS 440 ....................................................................................................... 61
1907 Convention (IV) Respecting the Laws and Customs of War on
Land and its Annex Regulations Concerning the Laws andCustoms of War on Land, The Hague, 18 October 1907,
UKTS 10 ...................................................................................................... 282
1920 Sèvres Treaty of Peace Between The Alliedand Associated Powers and Turkey ......................... 6, 10, 124, 219, 273, 274
1923 Draft Rules of Aerial Warfare, The Hague, February 1923 ........... 51, 285
1923 Treaty of Lausanne ................................................................................. 273
1925 Geneva Protocol for the Prohibition on the Use in War of
Asphyxiating, Poisonous or Other Gases, and of Bacteriological
Methods of Warfare, 94 LNTS 65 .............................................................. 286
1933 Montevideo Convention of the Rights andDuties of States, 165 LNTS 19 .......................................... 202, 205, 206, 312
1937 League of Nations, Convention for the Prevention andPunishment of Terrorism, 16 November 1937 ................................... 140, 299
1945 Charter of the United Nations,
TS 993 ........................... 41, 42, 119, 121–123, 150, 205–207, 284, 307, 312
1945 Statute of the International Court of Justice, TS 993 ........................... 283
1948 Convention for the Prevention and Punishmentof Genocide, 78 UNTS 277 ............................................... 136, 184, 298, 308
1949 Geneva Convention I for the Amelioration of the Condition of
the Wounded and Sick in Armed Forces in the Field,
75 UNTS 31 ............................................................................. 33, 42, 52, 122
1949 Geneva Convention II for the Amelioration of the Conditionof the Wounded, Sick and Shipwrecked Members of the Armed
Forces at Sea, 75 UNTS 85 ..................................................... 33, 42, 52, 122
1949 Geneva Convention III Relative to the Treatment of
Prisoners of War, 75 UNTS 135 .............................................. 33, 42, 52, 122xvi

Table of treaties

1949 Geneva Convention IV Relative to the Protection of Civilian
Persons in Time of War of August 12, 1949, in force 21 October
1950, 75 UNTS 287–417 ......................................................... 33, 42, 52, 122
1950 European Convention for the Protection of Human Rights andFundamental Freedoms, 213 UNTS 222 .............................................. 66, 288
1954 Hague Convention for the Protection of Cultural Property in the
Event of an Armed Conﬂict, 249 UNTS 240 ....................................... 53, 286
1966 International Covenant on Civil and Political
Rights, 999 UNTS 171 ................................................. 66, 286, 288, 295, 313
1966 International Covenant on Economic, Social
and Cultural Rights, 999 UNTS 3 ...................................................... 295, 313
1968 Vienna Convention on the Law of Treaties,
1155 UNTS 331 .......................................................................................... 287
1970 Declaration on Principles of International Law, Friendly Relations
and Co-Operation Among States in Accordance with the Charter of
the United Nations, General Assembly Resolution
2625 (XXV) ................................................................. 119, 205, 284, 295, 313
1971 Convention for the Suppression of Unlawful
Seizure of Aircraft, 14 October 1971 .................................................. 299, 333
1977 European Convention on the Suppression of Terrorism,
Council of Europe, Strasbourg, 27 January 1977 ....................................... 300
1977 Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of International
Armed Conﬂicts, 1125 UNTS 3 ......................................... 282, 292, 293, 295
1977 Protocol Additional to the Geneva Conventions of 12 August 1949,
and Relating to the Protection of Victims of Non-International ArmedConﬂicts, 1125 UNTS 609 .......................................................................... 283
1977 United Nations Convention on the Prohibition of Military or Any
Other Hostile Use of Environmental Modiﬁcation Techniques(ENMOD), New York, 1108 UNTS 151 .................................................... 286
1978 Vienna Convention on Succession of States in Respect ofTreaties 1978, 1946 UNTS 3 ...................................................................... 316
1979 International Convention Against the Taking of Hostages,
17 December 1979 ...................................................................... 299, 334, 339
1980 United Nations Convention on Prohibitions or Restrictions on the
Use of Certain Conventional Weapons Which May be Deemed to be
Excessively Injurious or to Have Indiscriminate Eﬀects, Geneva,
1342 UNTS 137 ............................................................................................ 77
1983 Vienna Convention on Succession of States in respect of State
Property, Archives and Debts adopted 7 April 1983 .................................. 316
1984 Convention Against Torture and Other Cruel, Inhuman or
Degrading Treatment and Punishment, 1465 UNTS 85 ........................... 158
1997 International Convention for the Suppression of Terrorist
Bombings, United Nations General Assembly Resolution
52/164, 15 December 1997 ................................................ 161, 299, 337, 339

Table of treaties

xvii

1998 Statute of the International Criminal Court, 2187
UNTS 90 ......................................................................... 70, 88, 148, 283, 289
1999 Convention of the Organisation of the Islamic Conference on
Combating International Terrorism, 1 July 1999, Annex to
Resolution No: 59/26-P ....................................................................... 142, 299
1999 International Convention for the Suppression of the Financing ofTerrorism, adopted 15 December 1999 ...................................................... 299
1999 Organization of African Unity, OAU Convention on the Prevention
and Combating of Terrorism, 14 June 1999 .............................................. 299
2002 Council Framework Decision of 13 June 2002 on
combating terrorism, 2002/475/JHA ................................. 147, 174, 300, 305
2002 Statute of the Special Court for Sierra Leone, annexed to
UN Doc S/2000/015 ............................................................................. 70, 260
2003 Protocol amending the European Convention on the Suppressionof Terrorism, ES No 190 Strasbourg, 15 May 2003 .................................. 300
2005 Council of Europe Convention on the Prevention of Terrorism,
CETS No 196, Warsaw, 16 May 2005 ....................................................... 300

Domestic laws
Constitution of the Republic of Turkey (Turkey) ........................................... 275
1863 General Orders No 100: Instructions for the Government of theArmies of the United States in the Field, Prepared by Francis Lieber,promulgated by President Lincoln as General Orders No 100,24 April 1863 (United States) ...................................................................... 285
1924 Law of Temporary Village Guards (Turkey) ................................. 276, 277
1930 Military Penal Code (No 1632) of 22 May 1930, as last amended
by the law (No 3970) of 19 May 1994 (Turkey) ......................................... 276
1983 Law 2932 of 19 October 1983 (Turkey) ................................................ 275
1998 Human Rights Act 1998 (England and Wales) ............. 153, 155, 158, 160
2001 Anti-Terrorism, Crime and Security Act 2001
(England and Wales) ................................................................... 153, 154, 300
2001 Uniting and Strengthening America by Providing Appropriate Tools
Required to Intercept and Obstruct Terrorism Act of 2001
(USA Patriot Act), Pub L No 107-56 (12 October 2001)(United States) ..................................................................... 170, 171, 303, 304
2004 Intelligence Reform and Terrorism Prevention Act of 2004
(HRpt 108–79) (United States) ..................................................................... 304
2005 Prevention of Terrorism Act 2005 (England and Wales) .............. 154, 301

Foreword
Professor Kader Asmal

Conﬂict in today’s world can no longer genuinely be solely a domestic aﬀair
as hostilities and confrontations often have both anticipated and unforeseeable
consequences for regional and the international aﬀairs as well as for individual states. While not all conﬂicts garner the media’s or public’s attention, forpeople living in areas aﬀected by unrest and conﬂict, life can be extraordinarily
diﬃcult with their livelihood, security and fundamental of human needs at
risk daily.
As threats to security increase, the resulting transgressions of humanitarian protection and human rights weaken the international norms that protect
us all.
The Kurdish Conﬂict aims to provide a thorough and thoughtful account of theongoing conﬂict in southeast Turkey and northern Iraq. As history, politics, law
and culture have all played a part in fomenting the conﬂict; the authors contend
they must be central to the Turkish state’s and the international community’s
approach in seeking a peaceful and sustainable resolution to the conﬂict.
Combining Kurdish Human Rights Project Chief Executive Kerim Yildiz’s deep
understanding of local history, politics and culture and his experience in international human rights law with humanitarian law expert Dr. Susan Breau’s expertise in the international legal framework, The Kurdish Conﬂict is distinctive in its
comprehensive understanding of the conﬂict in Turkey, its eﬀects on northern
Iraq and conﬂict-resolution. The arguments put forward in this book will, I hope,encourage further studies along these lines.
I have been privileged to work with a great number of people, in South Africa
and around the world, who have dedicated themselves to ending conﬂict andfostering the conditions for peace and justice to prevail. It is my sincere hope that
this book will enhance interest in this area and by contributing to the resolutionof the dreadful situation in southeast Turkey and northern Iraq and by providing
the parties and negotiators with the international legal and political framework inwhich to work towards a lasting peace.
In a world where an individual state’s security is increasingly related to eventsoccurring outside its borders and a greater emphasis on humanitarian law will beessential, The Kurdish Conﬂict contains important insights for us all.

xx

Foreword

I strongly commend this book to everyone interested or involved in theprotection of national rights and international peace.
Professor Kader Asmal
Hon. Professor of Law, University of the Western Cape andUniversity of Cape Town, former Minister of Education in South Africa

Foreword
Helena Kennedy and Mark Muller

In today’s world, conﬂict in any part of the world is the responsibility of theinternational community as a whole. As threats to security increasingly permeate
national borders, and each transgression of humanitarian protection, humanrights, and international cooperation weakens the system that protects us all, this
responsibility grows even more pressing.
There are a number of conﬂicts across the world today that remain largely
unreported, as the gaze of media headlines and key political actors is focused
elsewhere. Yet for people living in regions of conﬂict, life is a daily struggle for
their and their families’ security and welfare, the most fundamental of humanneeds. This book aﬀords their plight with the seriousness it deserves, by giving athorough and thoughtful account of the situation of the Kurdish people living
amongst ongoing conﬂict in southeast Turkey and northern Iraq. Combining
a deep understanding of local history, politics and culture with expertise ininternational legal frameworks, this book is distinctive in its holistic understandingof conﬂict and conﬂict-resolution. Law, politics, culture and history can all playroles in fomenting conﬂict; they must therefore be central to approaches seeking
peaceful resolution of conﬂict. The collaboration between Kurdish Human Rights
Project Executive Director Kerim Yildiz and humanitarian law expert Dr Susan
Breau in writing this book will, we hope, encourage further studies along theselines.
It is our sincere hope that this book will contribute to the resolution of the
conﬂict in southeast Turkey and northern Iraq, by providing the parties andnegotiators with the international legal and political framework in which to work
towards a lasting peace.
In a world of inter-dependent security, ongoing conﬂict, and developing
humanitarian law, this book contains important insights for us all. The pursuit ofpeace and the rule of law can be a diﬃcult path, but the authors’ accomplishment
here is to illuminate our way along it.
Helena Kennedy QC
Chair of Justice and Former Chair of the British Council
Mark Muller QC
Chair of the Bar Human Rights Committee of England & Wales andFounding Trustee of the Delﬁna Foundation

Acknowledgements

This major project would not have been possible without the conscientious andexpert research assistance of Ommera Ahmed, Alexandra Bamban, Rachel
Bernu, Narin Demircioglu, Loye Jide Olufemi, Antoine Martin, Estella Schmid,
Timothy Thrower and Catriona Vine.
A particular mention must be made of the outstanding contribution of
Janna Mancini whose tireless eﬀorts ensured the emergence of this project and its
completion.
The authors would also extend their gratitude to Katherine Carpenter andKhanam Virjee of Routledge and to the anonymous reviewers of the bookproposal.
The authors of the book would like to express their sincere appreciation of thebook’s research assistant Charlotte Alfred for the work she carried out and uponwhich this project is based.

Introduction

Although southeast Turkey has seen serious conﬂict for over 20 years, no
exhaustive study has been conducted on the international law and international
relations ramiﬁcations of the conﬂict. It is crucial to carry out a comprehensive
analysis of this ongoing armed conﬂict at a time when Turkey not only continues
to engage in European Union accession negotiations and cross-border military
operations in Kurdistan, Iraq, but is also taking tentative steps towards a politicalsolution to the situation of the Kurdish people in Turkey. This book provides alegal analysis of, and suggests a possible ‘roadmap’ for resolution of, the conﬂict,
thus ﬁlling the crucial gap in academic literature on the topic.
The two authors of this book bring a unique multi-disciplinary perspective tothis conﬂict. Kerim Yildiz, the Director of the Kurdish Human Rights Project(KHRP), has extensive experience in international law and armed conﬂict andoﬀers unique insight into the political causes of, and ultimate solutions to, thisconﬂict. Since the founding of KHRP, he has been involved in the preparation ofmany books and reports on the situation of the Kurdish people of the region andhas been instrumental in the bringing of cases to the European Court of Human
Rights. Dr Susan Breau is an academic international lawyer with particularexpertise in examining the laws governing armed conﬂict, both jus ad bellum andjus in bello and has also engaged in extensive research on the human rights consequences of movements for self-determination. This book is structured in such a
way as to give the reader a comprehensive view – both legal and political – of the
conﬂict in southeast Turkey.
The study commences in Chapter 1 with a brief history of the Kurdish people
across Turkey, Iraq, Iran and Syria as well as a brief background to the conﬂict in
the predominantly Kurdish southeast region of Turkey, and the area in the northof Iraq over which the Kurdistan Regional Government has authority (forthwith
referred to as southeast Turkey and Kurdistan, Iraq respectively). This background chapter helps to provide readers with suﬃcient knowledge of the topic
and prepares the ground for the analysis in the following chapters.
Part 1 of the book concentrates on the law of armed conﬂict as directly
applied to the situation in southeast Turkey and Kurdistan, Iraq. Chapter 2 deals
generally with the international legal regime concerning armed conﬂict and isalso designed to serve an introductory purpose. The ﬁrst task is to review the2

The Kurdish conﬂict

deﬁnition of ‘armed conﬂict’ within international humanitarian law and to applythat deﬁnition to discuss whether the situation in southeast Turkey rises tothe level of an armed conﬂict. After examination of the relevant treaties andacademic literature, it is determined that this conﬂict does indeed rise to thelevel of an armed conﬂict. Following this determination, the chapter reviews thevarious types of armed conﬂict that could exist and, on balance, concludes that a
non-international armed conﬂict exists in southeast Turkey and spills over into
Kurdistan, Iraq. It also, importantly, introduces the law within armed conﬂict, thejus in bello, which includes the Hague Regulations and the Geneva Conventions of1949 with the provision applicable in non-international armed conﬂict, Geneva
Convention, Common Article 3. The chapter concludes with a discussion of therelationship between the protections aﬀorded by international human rights law
and the legal obligation under international humanitarian law.
Chapter 3 is crucial to the study of the armed conﬂict in southeast Turkey andlooks in detail at the international humanitarian law standards applicable to a
non-international armed conﬂict including Common Article 3 to the Geneva
Conventions of 1949, Customary Humanitarian Law and Minimum Humanitarian Standards. The chapter reviews the legal obligations within non-internationalarmed conﬂict for both the Turkish military and the ﬁghters of the insurgency
within southeast Turkey. It also engages in a speciﬁc analysis of the jurisprudenceof the European Court of Human Rights and the applicability of those cases inclarifying not only the obligations under the jus in bello but also those underinternational human rights law. The analysis gives particular focus to the civilians
in the area who have been caught up in this long-standing war and who haveseen their lives and property destroyed.
Chapter 4 moves into a review of the legal regime concerning the distinction
between combatants and civilians and the classiﬁcation of belligerents withreference to the Kurdistan Workers Party (PKK). It discusses the Geneva
Conventions’ criteria of belligerents and the relevance of customary humanitarian
law to this debate. It also reviews the various protections aﬀorded to belligerents
within international and non-international armed conﬂict, describing the extensive protections available to prisoners of war under Geneva Convention III andcontrasting that with the limited protections available to detainees in internal
armed conﬂict. The chapter introduces some of the extensive jurisprudence of theEuropean Court of Human Rights which has reviewed conditions of detention
within the conﬂict in southeast Turkey as well as the treatment of the ﬁghters
within this conﬂict.
An issue that is crucial in this examination is the lawfulness of the continued
incursions into Kurdistan, Iraq by the Turkish armed and security forces.
Chapter 5 introduces and reviews the jus ad bellum concerning the lawfulness ofboth the rebel groups and the Turkish use of force within the context of theUnited Nations Charter and customary international law. This chapter discusses
the various justiﬁcations that have been or could be advanced for the Turkishintervention into another sovereign state and assesses the legality of these reasons.
Due to the fact that there has been a violation of the prohibition on the use of

Introduction

3

force, the issue of state responsibility as well as the responsibility of international
actors to respond to the threat to international peace and security that resultsfrom this intervention is engaged.
Chapter 6 discusses the international legal framework of terrorism. Members of
the PKK have been categorised as terrorists and the armed clashes as a series ofterrorist attacks. It reviews the legal consequences of deﬁning the insurgency
as terrorist attacks and the participants as terrorists. The main area of analysis iswhether or not the ‘war on terror’ has resulted in changes to the law of armed
conﬂict. It also reviews international developments and the recent case law inboth the Supreme Court of the United States and the House of Lords in the
United Kingdom, discussing the human rights and humanitarian law protections
aﬀorded to alleged terrorists and applying these rules to the situation in southeast
Turkey.
Part 2 of the book reviews the possible legal and political solutions to the
conﬂict and in two pivotal chapters examines in depth the international relations
consequences of the two competing concepts of terrorism and self-determination.
These chapters examine the feasibility of conducting constructive dialogue both
backchannel and public on the basis of resolving the ongoing armed conﬂict. The
prospects of creating a new common ground for a political solution are explored.
Chapter 7 reviews the role of international actors in contributing to, or undermining prospects for, a political solution, and looks at the impact the ‘global war
on terror’ has had on the international community’s actions in regards to the
conﬂict. By making some comparative analysis of international engagement in
diﬀerent situations regarding ‘terrorists’, the chapter suggests some modes of bestpractise for contributing to peace building. Chapter 8 introduces the legal debate
surrounding the principle of self-determination and the consequences to claims ofself-determination which are the key political models of federalism and secession,both which involve separate legal structures. Finally, Chapter 9 reviews the current political platform in Turkey with recommendations for the development of along-term post-conﬂict environment, with particular reference to the Northern
Ireland peace negotiations introducing possible political solutions to the crisis insoutheast Turkey, as well as a cessation of cross-border military operations into
Kurdistan, Iraq.
In conclusion, the study emphasises the importance and relevance of having
the situation in the southeast covered, as comprehensively as possible, bycompliance with international law. This is of enormous signiﬁcance, not only
from the human rights perspective regarding the Kurdish civilian populationsin Turkey and Iraq, but also from the perspective of ﬁnding a long-term
solution to the prevailing dispute. It further highlights that analysis of the law
regarding armed conﬂict is highly appropriate in relation to the conﬂict andshould not be undermined. Deﬁnition of the situation in Turkey and Iraq
according to the law of armed conﬂict would radically transform the nature andscope of the debate concerning the Kurdish conﬂict and open up new
avenues in the wider discussion about conﬂict resolution, global politics andinternational law.

1

Historical background

Introduction
The Kurdish regions of Turkey and Iraq have seen more than 20 years of serious
conﬂict, with severe human cost for its people. So that the reader may tackle thelegislative and humanitarian dimension of the conﬂict in the following chapters,
this ﬁrst chapter provides a brief history of the people living in the region and thecircumstances of the conﬂict. Key demographic, historical and political contexts
will be introduced, and the main actors in the conﬂict analysed. It then examinessome of the features of the last two decades of violence in the region, providing
the factual resources to engage with the legal and political issues that follow.

1.1 The Kurds
The Kurdish people are believed to number between 30 and 40 million1 and arewidely considered to be the largest group of stateless people in the world. Despite
this, they have maintained a strong ethnic identity for over 2,000 years. As an
ethnic group, Kurds are the product of years of expansion stemming from tribes
such as the Guti, Kurti, Mede, Mard, Carduchi, Gordyene, Adianbene, Zila andKhaldi,2 and the migration of Indo-European tribes to the Zagros Mountains
some 4,000 years ago.3 The Kurds have a clan history, with over 800 tribes in the
Kurdish regions.4 The Kurds have traditionally inhabited rural districts herding
shepherds or goats, with some keeping a nomadic or semi-nomadic lifestyle.
There are a number of dialects in the Kurdish language, but the most widely
spoken are Kurmanji and Sorani. Kurmanji is spoken predominantly in Turkey,
Syria and Europe, as well as by some Iranian Kurds.5 Sorani is spoken by Iraqi
Kurds south of the Greater Zab, and by Iranian Kurds in the province of
Kordestan. The Kurdish language belongs to the Indo-European language
family. Its dialects have been inﬂuenced by contact with surrounding modern
languages and at times have evolved accordingly.6 For example, most Kurds in
Turkey speak Kurmanji, but in the northwest of the Kurdish-dominated area(for example the provinces of Tunceli and Elazig) Zaza is also spoken.7
The majority of Kurds are Sunni Muslims who converted between the twelfth
and sixteenth centuries and adhere to the Shaﬁ’i school of Islam. However, many

Historical background5

Kurds living in the Iranian province of Kermanshah are Shi’ite. Other Kurds
follow Alevism, an unorthodox form of Shi’ite Islam, as well as the indigenous
Kurdish faith of Yezidism. There are smaller communities of Kurdish Jews,
Christians and Baha’is.
The use of the name ‘Kurd’ dates back to the seventh century AD, and‘Kurdistan’, or the land of the Kurds, was a term that ﬁrst appeared in the
12th century when the Turkish Seljuk prince Saandjar created a province of thatname in what is today modern-day Iran.8 In the 16th century the term came torefer to a system of ﬁefs generally.9 The borders of Kurdistan have ﬂuctuatedover time, and the Kurds are now spread through Turkey and the Middle Eastwith smaller populations to be found in the former Soviet Caucasus. The heart of
the Kurdish-dominated regions is the Zagros mountain chain which lies in theborder area between Iraq, Iran, Syria and Turkey, as well as the eastern extension of the Taurus Mountains. It extends in the south across the Mesopotamian
plain and includes the upper reaches of the Tigris and Euphrates rivers. In recent
decades, many Kurds have ﬂed the brutality of regimes governing the Kurdish
regions to seek refuge in Western Europe, where they form a sizeable andinﬂuential diaspora, particularly in Germany, France, Sweden, Belgium and theUnited Kingdom.
The term ‘Kurdistan’, however, refers to more than merely a geographicalarea. It also denotes the culture of the people who inhabit the lands. As successive
regimes in Turkey, Iran and Iraq have been extremely reluctant to acknowledge
the presence of the Kurds within their borders, and Syria has denied that
Kurdistan stretches across its boundaries at all, drawing a map of Kurdistan
is always contentious. However, there is no doubt that there exists a large,
contiguous area of predominantly Kurdish-inhabited lands, or that the idea of
Kurdistan has real meaning to the people who live there, as well as to Kurds
living in the diaspora community in Europe and across the world.
Despite the lack of precise ﬁgures, largely due to state denial or undercounting
for political reasons by countries with Kurdish minorities, the regional spread of
Kurdish populations can only be estimated.10 Kurds in Turkey form the largest
population, both numerically and as a percentage of the national population.
They currently number approximately 15 to 20 million, making up around23 per cent of Turkey’s population of 69 million. The Kurdish population in
Iraq is estimated to be over 5 million, making up 20 per cent of the population;
in Syria 1 million and 9 per cent, and in Iran between 7 and 9 million and
15 per cent.
The Kurds in Turkey are concentrated into the south and east of the country,
and form a majority of the population in a number of provinces including
Mardin, Siirt, Hakkari, Diyarbakir, Bitlis, Mus, Van and Agri.11 The provincesof Urfa, Adiyaman, Malatya, Elazig, Tunceli, Erzincan, Bingol and Kars
have also been traditionally dominated by Kurdish populations. In Iraq today,
Kurds predominantly live in the northern governates of Erbil, Dohuk andSulaimaniya, over which the Kurdistan Regional Government (KRG) has federal
jurisdiction.12

6

The Kurdish conﬂict

1.2 History of the Republic of Turkey
Modern Turkey emerged in 1923 from the break-up of the Ottoman Empire in
the wake of the First World War. Beginning in 1920, nationalists had begun todefy the authority of the Ottoman Sultan. When Turkey was declared a new
republic in 1923, it was fronted by nationalist leader, Mustafa Kemal Atatürk.
As modern Turkey’s ﬁrst president, Atatürk formed a government from themembers of his Ankara-based revolutionary group, and secured the passage ofthe new Turkish Constitution in 1924. He remained President until his deathin 1939.
The 1924 Constitution set out the new ideological premises from which Turkey
would be governed. Spurred by the perceived humiliation of the 1920 Treaty ofSèvres, which divided Ottoman territory, Atatürk and his followers asserted anew, ‘Europeanised’ Turkish nationalism based on a vision of the uniﬁed,
centralised and ethnically homogeneous nation state. They sought to enforce asingle Turkish identity, introducing dramatic reforms aimed at displacing theimportance of Islam in society, placing the military at the core of the state andlooking to the secular, industrial West for inspiration.13 Accordingly, theCaliphate was abolished in 1924, the wearing of the traditional fez was forbidden
and the Turkish language was Westernised. Atatürk eﬀectively ruled as a dictator,
with his Republican People’s Party being the only legal political party.14
As the largest and most prominent non-Turkish people in Turkey, the Kurds
had much to lose from Atatürk’s vision. A necessary tenet of the ambition toachieve an all-Turkish national identity was the destruction of alternative identities through assimilation. This was demonstrated in the failure to recognise theKurds as a minority in need of protection or to acknowledge their language andculture under the Treaty of Lausanne.15 Frustration among the Kurds withTurkey’s repressive policies towards them spilled over into a number of revolts,
and Turkey’s army became increasingly active in the Kurdish regions. The very
existence of the Kurds within Turkey’s borders soon came to be seen in the eyesof the state as synonymous with national disunity, and ultimately, with separatism.
The concentration of Turkey’s sizeable Kurdish community along the sensitive
frontier with Syria, Iran and Iraq, and the presence of frustrated Kurdish communities in these countries, further fuelled Turkey’s desire to subjugate the Kurds
and neutralise their regional dominance. Throughout the 1920s and 1930s,
during which time Atatürk’s government ruled Turkey along autocratic lines, a
programme of ‘Turkiﬁcation’ was introduced aimed at eradicating non-Turkish
allegiances and suppressing non-Turkish culture and expression. The Kurds
were to become its primary target, as the organs of the state sought to breakup the Kurdish community in the southeast through restrictive legislation andstate-sponsored violence.
Following the advent of multi-party democracy in 1945, the presiding government was voted out of oﬃce and a more liberal government, formed by the
Democratic Party, was elected in 1950. This period saw the re-emergence ofIslamic inﬂuence in Turkey’s governing regime. This new political era ended in aHistorical background7

military coup in 1960, which infamously resulted in several state executions,
including that of the Prime Minister Adnan Menderes and a number of otherhigh-ranking oﬃcials. Political instability following the coup combined witheconomic recession in the late 1960s sparked a wave of unrest and social chaos.16
The military responded with the 1971 ‘coup by memorandum’, threatening to‘exercise its constitutional duty’ and seize power if its demand of the ‘restorationof law and order’ was not met.17 The military-backed regime imposed martial
law and initiated a widespread crackdown on groups regarded as ‘leftist’ or‘separatist’. Then, in 1980, the military carried out the third coup in the historyof the Republic. Martial law was extended throughout the country, Parliament
was abolished and the country ruled through the National Security Council(NSC). A committee appointed by the military drafted a new Constitution,
which came into force in 1982.18 Thus followed a decade of one-party rule
under Turgut Ozal’s Motherland Party. Ozal’s death in 1993 led to the second
democratic Presidential elections in Turkey’s history.
In 1997 the military again asserted their position within Turkish politics, andforced Prime Minister Necmettin Erbakan’s Islamist-led coalition government toresign. The secular military alleged that Erbakan was trying to change the basic
nature of Turkish politics and government and turn Turkey into an Islamic-led
theocracy like neighbouring Iran. After forcing Erbakan from power, the army
turned the government over to more secular politicians in what is called Turkey’s‘post-modern coup’. However, in 2002 the Justice and Development Party (AKP),
regarded as a successor to Erbakan’s party, won parliamentary elections, and in2007 AKP politician Abdullah Gül was elected President of the Republic.
1.2.1 Political structure
Turkey’s Parliament, known as the Grand National Assembly (GNA), is
composed of 550 members elected for a 5-year term. The Prime Minister, who
is appointed from amongst the members of the GNA by the President, nominates
the Cabinet and together they form the Council of Ministers. All laws are
introduced into the GNA by the Council of Ministers and the deputies. Once
legislative bills are passed, they require the ratiﬁcation of the President, who may
refer the proposed laws (except the budget) back to the GNA for further
consideration. The GNA may also empower the Council of Ministers to issue
decrees, except during a state of emergency and martial law.
The President is the Head of State and is elected for a 5-year term (renewableonce) by the GNA, requiring a two-thirds majority (or an absolute majority in athird round of voting). Turkey’s President is not simply a titular or symbolic headof the state. The President has substantial powers mandated by Turkey’s
Constitution, including the appointment of top military and judicial ﬁgures.
Turkey’s history of coups d’état sheds light on the role that the military, led bystringent Kemalists, has played in modern Turkey. The military is considered bymany, and not least its own members, as the guardian of Kemalism, and plays
a prominent role in the Republic, exercising both formal and informal power.

8

The Kurdish conﬂict

One key institution is the NSC, which was set up following the 1960 military
coup to oversee security issues in Turkey. The NSC comprises political andmilitary leaders who meet every 2 months to discuss national security. Since the1960s, and particularly in the aftermath of the 1980 military coup, the role of
the NSC has been further strengthened and militarised. While the 1982
Constitution formally states the role of the NSC as advising the government with‘regard to the formulation, establishment and implementation of the national
security policy of the State’,19 in reality due to the political weight of the membersof NSC, and the institutionalisation of the armed forces within the civilian
administration, it appears to have a signiﬁcant eﬀect on all government decisionmaking. Although there have been continuous calls, domestically and internationally, for Turkey to reduce the power of, or completely abolish, the NSC,
the institution is deeply embedded in the state. While the government of Turkey
may wish to alter the role of the NSC, such changes are diﬃcult without comprehensive constitutional reform. as of yet, no meaningful reform regarding therole of the NSC has been forthcoming.
Further complicating the political system, and its reform, in Turkey is theexistence of the ‘deep state’, which is known to be a top-secret network of
criminal elements, political ﬁgures and members of the military. Due to the workof both domestic and international human rights organisations, much has beenlearned in recent years regarding the actions of the ‘deep state’ and the network’s
relationship to Turkish politics.20 The discovery of mass graves and evidence of
top military personnel’s involvement have done much to verify the claims that
regional and international non-governmental organisations (NGOs) have been
making for years. While all the activities and inner workings of the ‘deep state’
have not yet been made clear, more information is regularly coming to light.
Turkey’s government, to its credit, has done much to acknowledge and, where
possible, prosecute the activities of the ‘deep state’.
Turkey has been, throughout modern history, constantly pulled between the
secularist and ethnically homogenous founding vision of Atatürk, and the realityof having a population of which the majority is Muslim and nearly a quarter
Kurdish. This legacy has lived on through a string of fractured and unstable
governments during over the proceeding three decades, many of whom havesought to preserve Turkey’s secular vision by imposing repressive measures suchas the 1950 Press Law and the 2006 Anti Terror Law.21
The parliamentary and presidential elections in 2007 highlighted these
persistent tensions in Turkey’s political structure. In April 2007 the ruling AKP
nominated former Foreign Minister Abdullah Gül, as a presidential candidate.
Gül’s previous association with the Islamist movement and the fact that his wife
chose to wear a headscarf provoked intense debate regarding his candidacy bid.
The military published a memorandum blaming the government for stimulating
religious sentiment in society, and the ﬁrst round of the presidential elections
was later cancelled after a decision by the Constitutional Court.22 The AKP
government therefore decided to hold early parliamentary elections on 22 July
2007, resulting in a landslide victory. With this large majority in Parliament, andHistorical background9

a clear mandate from the electorate, Gül was again nominated, and on 28 August
was elected by the Parliament as President. The July elections also saw 24
deputies stand as independent candidates, most from the Kurdish region, only tolater form the pro-Kurdish Democratic Society Party (DTP) in Parliament,
thereby circumventing the required 10 per cent threshold for political parties.23
In November 2007 the Chief Public Prosecutor of Turkey’s Constitutional Court
ﬁled a case of party closure against the DTP, followed in March 2008 by a caseto close the ruling AKP.24
These cases follow a long legacy of restrictions on political parties in Turkey,
particularly targeting parties with a platform that is politically left-wing or
addresses Kurdish issues. Such parties have faced closure proceedings, theremoval of parliamentary immunity, and other forms of harassment.25 National
parties that advocated for the cultural and linguistic rights of minorities have been
repeatedly closed down.26 For instance, HEP (Halkın Emek Partisi, People’s Labour
Party),27 widely regarded as the ﬁrst political party with an openly Kurdish
platform, was closed and its parliamentarians imprisoned in 1994. In the case of
Sadak and Others v Turkey,28 which was brought to the European Court of Human
Rights by the London-based NGO Kurdish Human Rights Project, the Court
found that Turkey had violated Article 3 to Protocol No 1 (right to free elections)when it moved to dissolve the Democracy Party (DEP or Demokrasi partisi) only
months after its formation in 1993. The 13 applicants were charged by theTurkish state with making statements undermined the integrity of the state andthe unity of the nation. Some were charged under anti-terrorism legislation
with charges ranging from aiding and abetting an armed gang to distributionof separatist propaganda. While the Court eventually found in favour of theapplicants, successive pro-Kurdish parties have accordingly been forced to form
and re-form. The exclusion of such parties from democratic processes in Turkey
has impeded opportunities to establish a democratic outlet for Kurdish
demands.29

1.3 Historical background to the conﬂict
There is a long history of conﬂict and persecution in the Kurdish regions.
Continual repression from external authorities has been met with resistance by
the Kurdish people. While a full account of this history is beyond the scope of thebook, an overview of some key events will demonstrate the historical inﬂuence on
the recent conﬂict.
From the Seljuk Turks in the 11th century, to the Mongols from the 13th tothe 15th centuries, and later the Safavid and Ottoman Empires, the Kurdish
region has been governed by a succession of rulers, and its population vulnerable
to their dispositions. Under the Safavids, hundreds of thousands of Kurds
were forcibly removed from the Kurdish regions, and old Kurdish cities andcountryside were systematically destroyed. Then, in the 16th century the
Ottomans divided Kurdish territory into districts and installed local Kurdish
chiefs as governors, allowing Kurdish society considerable freedom to manage

10

The Kurdish conﬂict

their own aﬀairs.30 But by the beginning of the 19th century the Ottomans sought
to again subjugate the Kurdish principalities in order to centralise the decaying
Empire.31 These encroachments were met with a series of revolts led by Kurdish
chiefs in 1826, 1834, between 1853 and 1855, and 1880.32
When the Ottoman Empire was carved up in the aftermath of the First World
War, the Kurds were divided between modern-day Iraq, Iran, Syria and Turkey.
At ﬁrst, Kurdish autonomy had been a strategic concern of the Great Powers.
US President Woodrow Wilson’s Fourteen Point Programme for World Peace(1918) asserted that the non-Turkish minorities of the Ottoman Empire should be‘assured of an absolute unmolested opportunity of autonomous development’.33
Under Article 64 of the 1920 Treaty of Sèvres, signed by the Allied Powers andthe Constantinople government, the Kurds would be granted independence
within a year.34 However, European fears over the possibility of Soviet inﬂuence
over newly formed states, and concerns regarding Kurdish representation,
combined with historical events to preclude Kurdish independence.35 As the
mandate power over Mesopotamia from 1920, Britain at ﬁrst seemed committed
to the principle of keeping the Kurdish areas separate, but subsequently
submitted to mounting pressure to incorporate the area of Mosul into a new Iraqi
state. The aftermath of the Turkish War of Independence saw Sèvres superseded
by a new accord in 1923, the Treaty of Lausanne, which restored Turkish
sovereignty over the Kurdish-dominated area accorded independence at Sèvres.
The remaining Kurdish-dominated lands were divided between Iran, Syria andIraq, with the Allied powers drawing up new national boundaries giving moreheed to the allocation of oil resources and rewarding friendly Arab leaders than
to the ethnic distribution of the Kurds and their right to self-rule. The Kurds
were not given real voice in the discussions over the future of their lands.
The end of empire and the establishment of nation states ended any relativeautonomy which the Kurds had enjoyed and Kurdish communities were widely
treated with distrust. As a large, non-Arab population inhabiting an area ofsigniﬁcant strategic importance, the regimes governing the Kurdish regions
founded their policies towards the Kurds on suspicion and hostility. At the sametime, these newly emerging and vulnerable nation states were keen to preserve
their new found independence by fostering strong national unity and overcoming
perceived threats to their territorial integrity.
In Turkey, the post-independence programme of ‘Turkiﬁcation’ in the southeast
began by ﬁlling senior administrative appointments in the Kurdish region withethnic Turks, and all references to Kurdistan were excised from oﬃcial
materials.36 In 1924, the use of the Kurdish language in oﬃcial domains,
including in schools, and traditional Kurdish clothing and music were banned.
Two major Kurdish rebellions in 1925 and 1930, directed at the ‘Turkiﬁcation’programme, were brutally suppressed. Martial law was imposed in the Kurdish
region, and 52,000 Turkish forces were deployed in the region,37 Kurds were
subjected to systematic destruction of their villages, forced displacement and mass
killings. In 1934 a new Turkish law divided Turkey into three zones, and thestate was vested with the power to compulsorily transfer those from the third

Historical background11‘zone’ deemed to ‘require assimilation’.38 The aim of the law was to disperse theKurdish population and thus break down the Kurdish identity. The advent ofmulti-party democracy in 1945 saw a challenge to the Kemalist vision with there-emergence of Islamic inﬂuence in Turkey’s governing regime, but this failed toherald an end to repressive measures towards Kurds, as evidenced by the
restrictive 1950 Press Law.39
The succession of coups d’état in 1960, 1971 and 1980 renewed the power ofmilitary Kemalism to suppress ‘other’ identities. On the day of the 1971 coup,
the public prosecutor opened a case against the Workers’ Party of Turkey forcarrying out communist propaganda and supporting Kurdish separatism.40 Soon,
youth organisations were banned, union meetings prohibited, leftist publications
proscribed and strikes declared illegal. Hundreds of students, young academics,
writers, trade unionists and Workers’ Party activists were detained and tortured.41
Martial law was declared in 11 provinces, including major urban areas andKurdish regions, and renewed every 2 months.42 Constitutional reforms repealed
some of the essential liberal fragments of 1961. Special courts set up to deal withall forms of dissent quickly and ruthlessly, tried over 3,000 people before their
abolition in 1976. In an atmosphere conducive to extremism and violence, over
100 people were killed in a massacre incited by the Grey Wolves, the unoﬃcial
militant arm of the National Movement Party (MHP), in the southeast Anatolian
town of Kahramanmaraş in 1978.43 Following the 1980 coup d’état, martial law
was extended throughout the country. Parliament was abolished and the government suspended the Constitution and banned all political parties, trade unions,and most other forms of organisation. For the next 3 years, the Turkish armed
forces ruled the country through the NSC, appealing to the unity of the nationand the Kemalist tradition of state secularism as justiﬁcation. It is estimated thatover 500,000 people were detained in the wake of the 1980 coup,44 only half ofwhich were formally arrested, and almost all were tortured.45
The Kurdish population of Turkey were a particular target of state oppression throughout this period, as they were portrayed as a collective threat to state
unity. The use of the term ‘Kurdish’ was totally banned in 1983, as were the useof the Kurdish language, Kurdish folk songs and giving children Kurdish
names.46 Villages were renamed with non-Kurdish words. Exemplary sentences
designed to enforce these provisions were periodically meted out.47 As theKurdistan Workers Party (PKK) began armed struggle in 1984, the presenceof the Turkish army increased in the southeast.48 Few escaped the trauma of
frequent village security sweeps in which villagers were arbitrarily arrested andbeaten until confessing involvement with the PKK.
It is diﬃcult to overstate the importance of the inﬂuence of these events on thecourse of Kurdish history over the following decades. From the start, expressionsof Kurdish identity were discouraged and the Kurds were compelled to conformto the norms of the countries in which they now found themselves. In time,
military incursions into Kurdish regions became common occurrences, withcomprehensive attempts made to forcibly dissipate Kurdish communities inborder areas and stamp out the notion of a Kurdish identity.49

12

The Kurdish conﬂict

1.4 The conﬂict in southeast Turkey
This section of the chapter looks at the conﬂict in the Kurdish regions of Turkey
beginning from 1984 and examines the structure of the two main bodies engaged
in the conﬂict: the Turkish state security forces and the PKK, before chronicling
the main developments of the conﬂict up to the present day.

1.4.1 The Turkish armed forces in the conﬂict
Turkish state policy has been based on the denial of the existence of the Kurds;
therefore the state has narrowly viewed the Kurdish problem as a security
problem disregarding its broader social and legal foundations. Throughout thelast 25 years, the military-dominated NSC has continued to advocate for a solely
military solution to the Kurdish issue and ignored other dimensions to the
conﬂict, such as the state’s historical repression of Kurdish cultural expression andforced relocation.50 Claiming that Turkey is faced with the threat of division, thestate has targeted the region with emergency laws51 and established a penetrating
military presence throughout the Kurdish region, comprising the Army, Air
Force, gendarmerie, national police and paramilitary village guards. At the heightof the conﬂict in 1995, approximately 300,000 Turkish forces were serving inthe southeast.52 According to press reports, 240,000 additional troops were dispatched to southeast Turkey in April 2006 by the government.53 Today it isestimated that current troop levels number between 125,000 and 130,000.54
The Turkish Constitution mandates that the head of the armed forces is theChief of General Staﬀ, who is appointed by the President of the Republic uponnomination by the Council of Ministers.55 Three branches of the armed forces –land, sea and air – report directly to the Chief of the Turkish General Staﬀ and
not to the Ministry of Defence authority. Although the General Staﬀ and theMinistry of National Defence work in close coordination and cooperation, it is theGeneral Staﬀ who is responsible to the prime minister and is charged with overallcommand and control of the Turkish armed forces. The Turkish armed forcesconsists of ﬁve branches, the land, naval and air forces working under the General
Staﬀ and the gendarmerie forces and the coast guard working under land andnaval forces. The General Command of the Gendarmerie is subordinate to theGeneral Staﬀ of the Armed Forces in matters relating to training and educationin connection with the armed forces. However, in matters relating to the safety
and public order duties, the General Commander of Gendarmerie is subordinate
to the Ministry of Internal Aﬀairs.56 The Chief of General Staﬀ and the General
Commander of the Gendarmerie, as well as, the Commanders of the army, navy
and air forces, sit on the NSC, which advises the President and the Council of the
Ministers on the formulation, establishment, and implementation of the national
security policy of the nation.57
The Republic of Turkey has a compulsory military service system underarticle 72 of the 1982 Turkish constitution.58 Under the Law on Military Service(No 1111), all males of Turkish nationality are eligible for military service fromHistorical background

13

January of the year they turn 20 and until January of the year they reachturn 4159 with a provision to recruit from the age of 19 during mobilisation orstates of emergency.60 The standard duration of military service is 18 months
although the Council of Ministers can reduce this period to 15 or 12 months
according to the needs of the forces.61 University graduates also have an option toserve a shorter period.
The Military Penal Code62 does not recognise the right to conscientious
objection for conscripts.63 Although the United Nations has aﬃrmed that theright to conscientious objection is a legitimate exercise of the freedom of thought,
conscience and religion,64 the European Court of Human Rights has been more
muted on the subject. The Turkish Constitutional Court has explicitly ruled thatthe freedom of conscience stated in article 24 of the 1982 constitution does
not include the right to conscientious objection to military service.65 Article 45 of
the Military Penal Code states that individuals may not avoid military service forreligious or moral reasons66 and evasion and desertion are punishable by up to
3 years’ imprisonment under article 63.67 Completing a prison sentence does notremove the obligation to perform military service and ‘persistent disobedience’68
leads to recurring prosecutions with jail terms of up to 2 years.69 Military registration numbers are included on identity documents prohibiting those avoiding
military service from leaving the country, and they are pursued by the police andgendarmerie who are able to conduct house searches and routine checks in order
to arrest them.70 The exact number of conscientious objectors is not known, but
the military courts are believed to deal with around 60,000 cases per year that areconnected to draft evasion, although about half of these cases reportedly deal withcases of conscripts who have not reported themselves back in time after a periodof leave and have been absent for less than a week.71 Further, article 318 of
the Penal code72 criminalises ‘alienating the public from military service’ and stipulates up to 3 years’ imprisonment as a penalty.73 Thus, any person who speaks
out against military service is liable to the same treatment as a person who himself
refuses to undertake it.
In addition to the armed forces, the state tasks other agencies with security
operations in Turkey. The principal agencies charged with internal security andlaw enforcement are the national police and the gendarmerie. Both fall under the
Ministry of the Interior, however the gendarmerie is under the command of thearmy. The gendarmerie maintains law and order in rural areas, guards against
illegal smuggling and illegal border crossing and provides security on the outer
perimeters of prisons. In each province the gendarmerie commander advises
the governor on matters of security. In areas where a state of emergency isdeclared, gendarmes play a more signiﬁcant role than the police or any other civil
authority.
The paramilitary village guard system, in which the state funds and equips
local civilians to protect their towns and villages, was implemented as a temporary measure in 1985.74 The rationale behind the system was to take advantage
of local knowledge in security operations. Yet the scope and regulation of theiractivities has not been clearly set out by the state, and in the 1980s and 1990s the

14

The Kurdish conﬂict

guards became notorious as a result of accusations of theft, beatings and rape.75
Despite an oﬃcial halt on recruitment in 2000, the total number of village guards
stands at 70,000 according to a 2008 report published by the Turkish Economic
and Social Studies Foundation (TESEV), of which 57,174 are temporary and12,279 are volunteers.76
The Interior Minister in 2003 stated that 4,804 village guards were involved incriminal activities and they were the target of over 5,200 criminal investigations.77
Though the government pledged to abolish the village guard system in the shortterm it has made no eﬀort to phase out the system and in May 2007 amended theVillage Law to employ up to 60,000 additional village guards according theTESEV report.78 Although calls to abolish the village guard have been ongoing,
the attack on 5 May 2009 in Bilge Köyü, in Mardin province, in whichmasked gunmen attacked a wedding party killing 45, including six children and
16 women further increased demands that the Turkish government disband thesystem.79
1.4.2 The PKK in the conﬂict
The PKK (Partiya Karkerên Kurdistan) was founded in 1978 by Abdullah Öcalan.
The ﬁrst PKK members came from radical political student circles in urban
centres. Initially the organisation held a Marxist-Leninist political ideology,emphasising the need for a radical transformation of the social and politicalorganisation of Kurdish society. It sought the establishment of an independent
Kurdistan, uniting Kurds across several borders. Amongst the number of Kurdish
political movements that appeared in the 1970s, the PKK established its position
as foremost in appeal and notoriety. On the eve of the 1980 coup, some PKK
leaders ﬂed to Syria and Lebanon. The rise in the awareness of Kurdish identity
in Turkey, coupled with the narrow political space that resulted from the 1980
military coup, substantially increased the number of people who became actively
involved with the PKK in the 1980s.80 Open conﬂict between the PKK and the
security forces in Turkey started in 1984. Since then the PKK has combined
attention-grabbing attacks in urban centres, and guerrilla-style operations against
the Turkish state in the southeast.81
By the early 1990s, the PKK had abandoned the references to independent
Kurdistan in its manifesto, and was concentrating on the idea of a ‘democratic
republic’. The organisation has always classiﬁed itself as a political party thatuses military means to achieve political goals. By the mid-1990s, the PKK had
virtual control over large parts of southeast Turkey and at its peak, the group
had nearly 15,000 operatives.82 The main target of PKK military activity has
always been the Turkish military presence in southeast of Turkey. However,from 1985 the PKK also targeted the village guards83 and in the 1990s began totarget economic and social assets in Turkey such as railroads, bridges and tourist
sites.84 Between 1996 and 1999, PKK members (mainly female) conducted
16 suicide attacks.85 In tandem with its military operations, the PKK pressed
forward on the political front and in 1994 called for a dialogue. The organisation

Historical background15

encouraged supporters to take part in civil disobedience campaigns, such as
sit-ins and protest marches. In January 1995, the PKK communicated to the
Swiss government their commitment to observe the Geneva Conventions andProtocol 1 of 1977 in its conduct of hostilities, listing its understanding oflegitimate targets under the conventions as being restricted to the Turkish armed
forces, contra-guerrilla forces, intelligence services, gendarmerie, and village
guards, and stating that captured forces would be treated as prisoners of war.
Accepting the principle of command responsibility, the PKK stated its adoptionof a system of discipline to ensure respect for these rules and punish theirviolation.
In February 1999, while in Kenya Abdullah Öcalan was handed over toTurkish security personnel. Convicted of treason, he received a death sentence
86
that was later commuted to a life sentence.
Öcalan now remains the sole inmate.
in a specially conﬁgured jail on Imralı Island. In August 1999 Öcalan issued
a public statement calling on the PKK to issue a unilateral ceaseﬁre and pursue a
democratic solution to the conﬂict, which was accepted by the PKK’s decisionmaking and armed sections shortly after, but reserving the right to self-defence inthe event of military attack.87 In 2000 the word ‘Kurdistan’ was dropped from
PKK’s name in recognition of it’s abandoning of its former demands for Kurdish
independence.88 In 2002 the PKK announced its dissolution and formation as a
new group, the Kurdistan Freedom and Democracy Congress (KADEK) topursue the political aims of the Kurdish people through democratic means.89
However, in June 2004 the PKK ended the ceaseﬁre, citing ongoing Turkish
military operations, though it was reported that there were splits within theorganisation over the use of armed violence.90 Since 2004 PKK military activity
has predominantly consisted of small ambushes, including use of mines, snipers
and long-range straﬁng of military outposts, rather than direct combat with theTurkish military.91
1.4.2.1 Structure of the PKK
The PKK has a central committee for organisational decision-making andregional preparations committees across the region of Turkey to oversee local
actions.92 After Öcalan ﬂed to Syria, the Presidential Council was established tocoordinate the implementation of Öcalan’s decisions.93 The combatants, whowear uniforms, are organised into guerrilla units under the command of a hierarchy of commanders.94 All these bodies have varied in size over the years,
depending on strategic objectives and operating context. Women have traditionally played a signiﬁcant role in the PKK, and comprised approximately a third of
PKK armed forces in the early 1990s.95 The PKK has a strict system of internal
discipline, and transgressors have been executed96 or imprisoned in the camps.97
It holds an Annual Congress which, as far as possible, gathers together members
from across the regions to share information and decide future strategy. New
recruits conduct a programme of military training and graduate in a formal
ceremony.98